NEW  JERSEY  EQUITY  REPORTS, 

VOLUME  X. 
STOCKTON,  II, 


REPORTS  OF  CASES 


ARGUED  AND  DETERMINED  IN  THE 

COURT  OF  CHANCERY, 


AND,  ON  APPEAL,  IN  THE 


COURT  OF  ERRORS  AND  APPEALS 


OF  THE 


STATE  OF  NEW  JERSEY. 


JOHIST    P>.    STOCKTON",    Reporter. 


VOLUME  II. 

SECOND     EDITION 


WITH    REFERENCES  SHOWING  WHERE  THE  CASES  HAVE  BEEN  CITED, 
FIRMED,  OVERRULED,  QUESTIONED,   LIMITED,   ETC.,  DOWN  TO  VOL. 
XXX  IX,  N.  J.  LAW  REPORTS  (x  VROOM),  AND  VOL.  XXV111, 
K.  J.  EQUITY  REPORTS  (l  STEW.),  INCLUSIVE. 


By  John  Linn,  Esq.,  of  the  Hudson  Co.  Bar. 


JERSEY    CITY: 

FREDERICK   I).   LINN  &  CO. 
i8S6. 


J 


CHANCELLOR 

DURING  THE  PERIOD  OF  THESE  REPOKTS, 

HON.  BENJAMIN  WILLIAMSON. 


JUDGES  OP  THE  COURT  OF  ERRORS  AND  APPEALS. 


EX    OKFICIO   JUDGES. 


HON.  BENJAMIN  WILLIAMSON,  CHANCELLOR. 

"  HENRY  W.  GREEN,  On.   JUST.  SUP.  COURT. 

«  ELIAS  B.  D.  OGDEN, 

"  LUCIUS  Q.  C.  ELMER. 

"  STACY  G.  POTTS, 

«  DANIEL  HAINES, 

«  MARTIN  RYERSON, 

«  PETER  VREDENBURGH, 


ASSOCIATE  JUSTICES 
OF  SUP.  COURT. 


JUDGES  SPECIALLY    APPOINTED. 

HON.  THOMAS  ARROWSMITH, 
«      JOHN  M.  CORNELISON, 
"      JOHN  HUYLER, 
«      JOSEPH  L.  RISLEY, 
«      CALEli  II.  VALENTINE, 
"      MOSES  WILLS. 


778386 


A  TABLE  OF  CASES 


EEPORTED   IN    THIS    VOLUME. 


A. 

Ackerraan  ads.  Uogencamp 2C7 

Adams  v.  Hudson  County  Bank 535 

Andrews  v.  Farnham  and  Smith 91 

Andrews  ads.  Kearney 70 

Armour  v.  McKelway .  .ll."» 

Armstrong  ads.  Warbass 203 

13. 

Baldwin  v.  Van  Vorst 577 

Birdsall  v.  Colie 03 

Blair  v.  Ward [19 

Brakely  v.  Sharp 206 

Brown  ads.  Wallace .808 

Bryan  ads.  Cornish 140 

c. 

Cam  man  ads.  Hartwell 1 28 

Cargill  ads.  Lee 331 

Carle  ads.  Williams 5-fci 

Chamberlain  ads.  Williamson 37!) 

Clapp  ads.  Ely 178 

Clark  ads.  Xorris 51 

Clark  v.  Johnson 287 

Cole,  T.  Totts 67 

Colie  ads.  Birdsall 6!» 

Colton  ads.  Terhnne 21 

Cooper  ads.   Little.. 27H 

Cornish  T.   Bryan 140 

Coryell  ads.    Holcombe 393 

Cox  ads.  Dunham  . .  .  .437 


TABLE   OF    CASES. 


D. 

Davison  ads.  Halsted 290 

Doughten  v.  Gray 323 

Doughty  ads.  Doughty 347 

Doughty  v.  Doughty ib 

Doughty  v.  King 396 

Dunham  v.  Cox. . .  437 


E. 

Ehlers  ads.  Heyde 283 

Ely  ads.  Clapp 178 

F. 

Farley  v.  Woodburn 96 

Farnham  and  Smith  ads.  Andrews 91 

Fisler  v.  Porch 243 

Flagg  v.  Vandoren  and  Bonnell 82 

G. 

Garret  v.  Stilwell 313 

Gibbons  ads.  Whitehead 230 

Gifford  v.  New  Jersey  Railroad  and  Transportation  Company 172 

Gilbert  ads.  Lathrop 344 

Glover  v.  Powell 211 

Grandin  v.  Reading 370 

Gray  ads.  Doughten 323 

II. 

Halsted  v.  Davison 290 

Harker  v.  Irick 269 

llartwell  v.  Camman 128 

Henderson  ads.  Miller 320 

Heyde  ads.  Ehlers 283 

Hildreth  v.  Schillinger 196 

Hoagland  ads.  Veghte 45 

Hogencamp  ads.  Ackerman 267 

Holcombe  v.  Coryell .392 

Holcombe  v.  Holcombe's  executors 284 

Holcombe  ads.  Holcombe's  executors ib 

Holmes  v.  Stout 419 

Hornor  v.  Leeds 86 

Uubbell  ads.  Johnson..  ..332 


TABLE   OF   CASES.  K 

Hudson  County  Bank  ads.  Adams 535 

Hunt  v.  Hunt  et  al 315 

Hunt  et  al.  ads.  Hunt ib 

I. 

In  the  matter  of  Daniel  Vanauken 18G 

Jrick  ads.  Barker 269 

J. 

Johnson  ads.  Clarke 287 

Johnson  v.  Hubbell 332 

Jones  ads.   Naughright 298 

K 

Kearney  v.  Andrews 70 

King  ads.  Lucas 277 

L. 

Lathrop  v.  Gilbert , 344 

Lee  v.  Cargill 331 

Leeds  ads.  Horner 68 

Lippincott  v.  Ridgway 164 

Little   v.  Cooper 273 

Lucas  v.  King 277 

Lutheran  Church  v.  Maschop 57 

M. 

Martin  v.  Righter 510 

Maschop  ads.    Lutheran   Church 57 

McKelway  ads.  Armour 115 

Medara  ads.  Sheridan 469 

Miller   v.  Henderson 320 

Morris  Canal  ads.  Plum 256 

Morris  and  Essex  Railroad  Company  v.  Newark 352 

K 

Naughright  ads.  Jones 298 

New  Jersey  Railroad  Company  ads.  Gifford 172 

Newark  ads.  Morris  and  Essex   Railroad  Company 352 

Nicholls  v.  O'Neill y$ 

Norris  v.  Clarke ...51 


TABLE    OF    CASES. 


o. 

Obert  ads.  Obert - :~::;~.  .90 

Obert  v.  Obert ib 

O'Neill  and  wife  ads.   Nicholls 88 

P. 

Pacific  Mutual  Insurance  Company  ads.  Yard 480 

Paterson  Savings  Bank  ads.  Peoples  Bank 13 

Paul  ads.  Young 401 

Peloubet  ads.  Ward 304 

Peoples  Bank    v.  Paterson  Savings  Bank.. 13 

Plum   ads.    Morris  Canal 256 

Porch  ads.  Fisler 243 

Potts  ads.  Cole 67 

Powell  ads.  Glover 211 

E. 

Reading  ads.  Orandin 370 

Receivers  of  Peoples  Bank  v.  Paterson  Savings  Bank.. 13 

Ridgway  ads.  Lippincott 164 

Righter  ads.    Martin 510 

s. 

Schillinger  ads.  Hildreth 196 

Scudder  v.  Stout : 377 

Sharp  ads.  Brakely •• 206 

Sheridan  v.  Medara 469 

Shreve  v.  Shreve 385 

Shreve  ads.   Shreve ib 

Sims  v.  Sims 158 

Sims  ads.  Sims ib 

Snover  v.  Snover 261 

Snover  ads.  Snover ib 

Speer  v.  Whitfield  and  Jeroloman 107 

Stilwcll's  executors  ads.  Garret 313 

Stout  ads.   Holmes 419 

Stout  ads.  Scudder 377 

Stout  v.  Vankirk  and  Cruser 78 

T. 

Terhune  ads.  Colton 21 

Trenton  Water  Power  Company  ads.  Woodruff 489 


TABLE    OF    CASES. 


V. 

Vanauken,  Daniel,  in  the  matter  of... 183 

Vandoren  and  Bonnel  ads.  Flagg. 82 

Vankirk  and  Cruser  ads.  Stout 78 

Van  Vorst  ads.  Baldwin .£77 

w. 

Wallace  v.  Brown 308 

Warbass  v.  Armstrong. 263 

Ward  and  Cook  ads.  Blair 119 

Ward  v.  Peloubet. 304 

Whitehead,  executor,  v.  Gibbons 230 

Whitfield  and  Jeroloman  ads.  Spear 107 

Williams  v.   Carle 543 

Williamson  v.  Chamberlain 373 

Woodburn  ads.  Farley 96 

Woodruff  v.  Trenton  Water  Power  Company 489 

Y, 

Yard  v.  The  Pacific  Mutual  Insurance  Company 480 

Young  v.  Paul 401 

Yule  v.  Yule 133 

Yule  ads.  Yule...  ...ib 


CASES  CITED. 


A 

Admrs.  of  Schenck  v.  Outtrell,  1  Gr.  C.  301 48 

Agar  v.  Fairfax,  17  Ves.  533 99 

Alderson's  Assignees  v.  Temple,  4  Burr,  2240 19 

Amler  v,  Araler,  3  Ves.  583 382 

Atkinson  v.  Leonard,  3  Bro.  0.  318 140 

Aylett  v.  Ashton,  1  Mylne  &  C.  105 , ,. .,, 416 


B. 

Balanno  v.  Lunley,  1  Ves.  &  Beam,  224 415 

Ball  T.  Montgomery,  2  Ves.  Jun.  195 145 

Barnes  v.  Mawson,  1  Maul.  &  S.  77 136 

Benedict  T.  Lynch,  1  J.  C.   376 583 

Birmingham  v.  Kirwan,  2  Scho.  &  Lefr.  452 54 

Blaines  Lessee  v.  Chambers,  1  Serg.    &  R.  169 209 

Blinaan  v.  Brown,  2  Vern.  232 100  280 

Bloxom  v.  Peel,  2  W.  Blac.  999 478 

Boehm  v.  Wood,  Sur.  &  Russ.  344 140 

Bogardus  v.  Trinity  Church,    4  Paige,  178 85 

Boggs  v.  Varner,    6  Watts.  &  S.  469 434 

Bolles  v.  Wade,  3  Gr.  458 81 

Bond  v.  Hopkins,  1  Sch.  &  Lef.  413 349 

Boyle  v.  Adams,  6  Ves.  Jun.  594 85 

Bracebridge  v.  Buckley,  2  Priors  Ex.  R.  216 285 

Brandlyn  v.  Ord,  1  Atk.  571 429 

Brakely  v.  Sharp,  1  Stock.  10 209 

Brown  v.  Edsall,  1  Stock.  256 275 

Broome  v.  Monk,  10  Ves.  605 390 

Brownsword  v.  Edwards,  6  Ves.  Rep.  247 86 

Bumpeer  v.  Platurn,  1  Johns.  Ch.  219 429 


CASES    CITED.  XIH 

Burton  v.  Slattery,  3  B.  C.  P.  63 585 

Bush  v.  Golden,  17  Conn.  594 436 

Butler  v.  Stevens,  26  Maine  484 436 

C. 

Chambers'  Exrs.  v.  Tulane.   1  Stock.  146 236 

Chapman  v.  Albany  &  S.  R.  R.  Co.,  10  Barb.  369 359 

Cheeseborough  v.  Millard,   1  J.  C.  414 127 

Christie's  Case,  5  Paige  242 195 

Cockson  v.  Cook,  Cro.  Jac.  125 506 

Cogler  v.  Cogler,  1  Ves.  Jun.  94 140 

Colby  v.  Kinniston,  4  New  Hamp.  262 427 

Colluison  v.  Colluison,  18  Ves.  352 141 

Commonwealth  v.  Breed,  4  Pick.  460 225 

Compton  v.  Richards,  1  Price  27 209 

Cose  v.  Smith,  4  J.  C.  271 102 

D. 

Daniels  v.  Davison,  16  Vesey  249,  17,  ib.  433 4$t' 

Dartmouth  College  v.  Woodward,  4  Wheat.  518 229 

Davis  v.  Blunt,  6  Mass.  487 427 

Dawson  v.  Dawson,  7  Ves.  173 140 

Den  v.  Baldwin,  1  Zab.  4»3 526 

Denton  v.  Denton.  1  J.  C.  36t 140 

Dey  v.  Dunham,  2  Johns.  C.  1^2 438 

Doe  Ex.  Dem.  Wells  v.  Scott,  3  Maule  &  Sel.  300. 389 

Dows  v.  McMichael,  6  Paige  144 8J 

Duker.  Page,  2  G.  C.  154 426 

E. 

Edgerton  v.  Peckham,  1 1  Paige  352 583 

Etches  v.  Lance,  7  Ves.  Jun.  417 II J 

Byrev.  Diiepain,  2  Ball  &  B.  290 426 

F. 

Fletcher  v.  Peck,  6  Cranch.  87. 2C9 

Fortesque  v.  Hannah,  19  Ves.  71 336 

Franklin  v.  Frith,  3  Bro.  C.  C.  433 •£% 

G. 

Gelston  &  Schenck  v.  IToyt,  1  J.  C.  543 276 

Gestv.Flock,  1  G.  C.  115 382 


CASES   CITED. 

Gfibson  v.  Gibson,  17  E.  L.  &  E.  R.  352 56 

CKiion  v.  Knapp,  6  Paige  43 126 

Graham  v..  Birkenhead  Co.,  2  Mac.  &  Gor.  146. 176 

Grant  v.  Chase,  17  Mass.  443 210 

H. 

Halifaxv.  niggins.  2  Ves.  134 586 

Hall  v.  Smith.  14  Vesey  426 426 

Hamilton  v.  Camtmngs,  1  J.  C.  517 151 

Hamilton  v.  Elliott,  5  Serg.  &  R,  375 508 

Harding  v.  Glover,  18  Ves.  281 66 

Harman  v.  Fisher,  Cowp.  124 19 

Harrison  v.  Sterry,  5  Cranch.  301 18 

Hart  v.  Ten  Eyck,  2  J.  C.  62 249 

Hartwpll  v.  Camman,  Cro.  Jac.  150 131 

Hazard  v.  Robinson.  5  Mason's  Rep.  272. . , 208 

Hazard  v.  Robeson,  3  Mason's  Rep.  48 209 

JI«rricl:  v.  Powell,  9  Ala.  409 .430 

Herbert  v.  Wren,  7  Cranch.  379 50 

Hewlins  v.  Shippam,  5  Barn.  &  Cres.  210 210 

Hill  v.  Cook,  1  Ves.  &  Beam  175 390 

Howe  v.  Earl  of  Dartmouth,  7  Ves.  147 390 

Hutchinson  v.  Tindall,  2  Green's  C.  357 .  .249 


I. 

Inhabitants  of  Springfield  v.  Conn.  River  R.  R.,  4  Cush.  63 361 

Irvin  v.  Ironmonger,  2  Rus.  &  M.  591 391 

Izard  v.  Ex.  of  Izard,  1  Dessau  116 .  .336 


J. 

Jackson  v.  Burgot,  10  Johns.  462 434 

Jackson  v.  Jackson's  Ex.,  2  G.  C.  113 264 

Johnson  v.  Jordan,  2  Mete.  234 209 

Jolland  v.  Sfainbridge,  3  Ves.  478 433 

Jones  v.  Smith,  1  Hare  65 434 

Jones  v.  Martin,  3  Anst.  882 .  .336 


K 

King  v.  Montague,  4  B.  &  C.  596 224 

L. 

Law  v.  Ford,  2  Paige  310 64 


CASES    CITED.  XV 

LeNeve  v.  LeNeve.  1  Ves.  Sen.  64 438 

Leonard  v.  White,  7  Mass.  8 209 

Lewis  v.  Maddocks,  6  Ve«.  Jr.  160 336 

Linton,  Assignee,  v.  Bartlet,  3  Wil.  47. 19 

Logan  v.  Wienholt,  7  Blighs  53 337 

Lord  Inchiquin  v.  French  Ambl.  Kept.  33 237 

Lord  Walpole  v.  Lord  Oxford,  3  Ves.  402 336 

Liibier  v.  Genow,  2Ves.  579 285 

Lupton  v.  Lupton,  2  J.  C.  625 162 


M. 

Martin  v.  Van  Schaic,  4  Paige  479 64 

Mayor  of  Lynn  v.  Turner,  Cowp.  86 224 

McMeehan  v.  Griffing,  3  Pick.  149 428  48<J 

Meeker  v.  Marsh,  Saxton  198 8$ 

Merlins  v.  Jolliffe,  Ambler  318 429 

Michoud  v.  Girod,  4  How.  503 10« 

Michoud  v.  Harris,  4  How.  563 101 

Miles  v.  Rose,  5  Taunt.  706. 225 

Miller  v.  Miller,  Saxton  889 145 

Milhgftn  v.  Cooke,  16  Ves.  1 414 

Moorhouse  v.  Colvin,  9  E.  L.  &  E.  130 386 

Morris  v.  Edgington,  3  Taunt.  31 209 

Mulford  v.  Bowen,  1  Stock.  797 108 


N. 

Newling  v.  Francis,  8  T.  R.  189 78 

Newton  v.  Bennet,  1  Bro.  C.  C.  359 26*1 

New  Ipswich  W.  Fact'y  v.  Batchelder,  3  N.  H.  190 209 

Kichols  v.  Chamberlain,  2  Cro.  R.  121. 209 

Nicollv.  N.  Y.  &E.  R.  R.,  12  Barb.  S.  C.  460 5(* 

Norcruss  v.  Wedging,  2  Mass.  508 427 


o. 

Ogden  &  Thomas  v.  A.  Jackson,  1  Johns.  378 18 


P. 

Parker  v.  Sowerby,  2  E.  C.  L.  154 55 

Patten  v.  Brebncr,  1  Bligh.  66 416 

Pickering  v.  Staples,  6  Serg.  &  II 209 

Piety  v.  Stjicc,   4  Ves.  Jun.  020 268 


XVI  CASES    CITED. 

Pod  more  v.   Gunning,  9  Sim.  644 336 

Potts  v.  Arnow,  4  Halst.  Ch.  322 116 

Proctor  v.  Cooper,  Vann.  297 : 685 

Pulteney  v.  Warren,   6  Ves.  73 v 349 

E. 

Radcliffe's  Exrs.  v.  Mayor  of  Brooklyn,  4  Com.  195 359 

Kaikes  v.  Ward,  1  Hare  445 306 

Receivers  v.  Paterson  Gas  Light,  3  Zab.  291 18 

Renton  v.  Chaplain  &  Carter,   1  Stock.  62     66 

Rerickv.  Kern,  14  Serg.  &  R.  267 364 

Rinehart  v.  Harrison's  Exrs.,  1  Bald.  179 382 

Rivers  v.  Exrs.  of   Rivers,  3  Dessaw  195 336- 

Bbbin  v.  Barnes,  Hob.  131 209 

Robinson  v.  Pitt,  3  P.  Wms.  249 263 

Rogers  v.  Jones,  8  New  Harnp.  264 434 

Rowe  v.  Granite  Bridge  Co.,  21  Pick.  344 226 

Russel's  Case,  1  Barb.  C.  39 190 

t'-1*  .  ,- 

s. 

Salter  v.  Williamson,  1  G.  C.  480 288 

Sanders  v.  Pope,  12  Ves.  284 .580585 

Scott  v.  Gamble,  1  Stock.  235 103 

Sedwick  v.  Walkins,    1  Ves.  Jun.  49 140 

Seers  v.  Hind,  1  Ves.  294 266 

Shaftoe  v.  Shaftoe,  7  Ves.  171  140 

Sherry  v.  Piggott,    Bulstrode's  Rep.  .339 208  210 

Sloan  v.  Maxwell,   2  G.  C.  563 192 

Sparks  v.  Liverpool  Water  Works,  1 3  Ves.  433 585 

Stanhope  v.  Manners,  2  Eden  197 585 

Stark  v.  Henton,  Saxton  224 54 

State  Bank  v.  Receivers  Bank  of  N.  B.,  2  Green's  Ch.  270 18 

State  Bank  of  Elizabeth  v.  Marsh  &  Edgar,  Saxton  288 264 

State  of  N.  J.  v.  Wilson,  7  Cranch.  164 229 

Stevenson  v.  Black,  Saxton  338 541 

Story  v.  Odin,    12  Mass.  157 209 

Stoutenburgh  v.  Peck,  3  G.  Ch.  446 540 

Stut-kler  v.  Tood,  10  S.  &  R 209 

Sruyvesant  v.  Mayor,  &c.,  of  N.  Y.,  11  Paige  414 509 

S^ansborongh  v.  Coventry,  9  Bing.  305 209 

Sweet  v.  Southcote,  2  B.  C.  C.  66 429 

Swift  v.  Gregson,  1  T.  R.  432 170 

T. 

Tankersley  v.  Anderson,  4  Dess.  44 33 

Taylor  v.  Stilebert,  2  Vesey  440 426 


CASES    CITED.  XVII 

Thompson  v.  The  Blk.  Bird,  C.  McC.  2  Peters  245 227 

Thompson  v.  Lambe,   7  Ves.  587 249 

Tichenor  v.  Dold,  3  G.  Ch.  454 541 

Tomlinson  v.  Harrison,  8  Ves.  32 141 

Trent  v.  Taylor,  9  Cranch.  43 229 

Tuckfiehl  v.  Buller  &  Son,  1  Dickens  24 i 99 

Turner  v.  Morgan,  6  Ves.  143 9 

Tuttle  v.  Jackson,  6  Wend.  226 427 

Tuyne's  Case,  3  Co.  R.  81 330 

u. 

Underbill  v.  Van  Cortlandt,  2  J.  C.  355 285 

U.  States  v.  Appleton,  1  Sum.  492 209 

V. 

Tallareal  v.  Lord  Galway,  Ambler  683 56 

Vleit  v.  Lowmason,  1  G.  C.  404 540 

w. 

Wadman  v.  Calcraft,  10  Ves.  Jr.  69..     585 

Walcott  v.  Hall,   2  Bro.  305 162 

Warbuton  v.  Warbuton,  23  E.  C.  L.  R,  416 65 

Ward  v.  Society  of  Att'ys,  1  Coll.  370 174 

West  v.  Smith,  1  Green's  Ch.  309 832 

Whitenack  v.  Stryker  &  Voorhees,  1  G.  C.  8 192 

Whitenack  Case,  2  Green's  C.  252 190 

Wills  v.  Slade.  6  Ves.  488  ...  99 

Wills  v.  Smith,  7  Paige  22 683 

Wilson  v.  Greenwood,  1  Swanton  480  65 

Williams  v.  N.  Y.  Cen.  R.  R.,  18  Barb.  Sup.  Ct.  222 359 

Wollen  v.  Tanner,  6  Ves.  Jun.  218 169 

Wood  v.  Strickland,  2  Ves.  &  Beam. 85 


CASES 

ADJUDGED  IN 

THE   COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW  JERSEY, 
FEBRUARY  TERM,  1854. 


BENJAMIN    WILLIAMSON",    ESQ.,    CHANCELLOR. 


CORNELIUS  S.  YAN  WAGENEN  and  others,  receivers,  etc., 
of  the  Peoples  Bank  of  Paterson,  vs.  THE  PATERSON 
SAVINGS  BANK  and  others. 


The  object  of  "the  act  to  prevent  frauds  by  incorporated  companies"  is  to  se- 
cure to  the  creditors  of  trach  institutions  an  equal  distribution  of  its  assets. 
This  is  the  primary  object  of  the  statute.  Any  act  done  with  the  view,  and 
for  the  purpose  of  defeating  this  object,  is  a  fraud  upon  the  act,  and  ia  illegal. 

Our  court*  have  alwiys  recognised  the  object  and  provisions  of  the  act  in 
question  and  the  bankrupt  laws  to  be  essentially  the  same;  and  if  it  is  to  be 
considered  aa  partaking  of  the  character  of  a  bankrupt  law,  it  is  proper  to 
apply  to  it  the  general  rules  that  govern  the  system,  where  it  Is  in  use. 

If  a  bankrupt,  in  course  of  pnyment,  pays  a  creditor,  this  ia  a  fair  advantage 
in  the  course  of  trade;  or  if  a  creditor  threatens  legiil  diligence,  and  there 
is  no  collusion,  or  begins  to  sue  a  debtor,  and  he  makes  an  assignment  of 
part  of  his  goods,  it  is  a  fair  transaction,  and  what  a  man  might  Uo  without 
having  any  bankruptcy  in  view.  But  if  a  man,  in  contemplation  of  an  act 
of  bankruptcy,  dispose  of  all  his  effects  to  the  use  of  different  creditors,  it 
would  be  a  fraud  upon  the  acts  of  bankruptcy;  but  if  done  in  the  cottrte  4* 
trade,  and  not  fraudulent,  it  may  be  supported. 

Where  a  bank  ha*  become  to  hopelessly  Insolvent  that  the  directors  are  forced 

VOL.  II.  B 


14       •  CASES  IN  CHANCERY. 


Receivers  of  Peoples  Bank  t>.  Paterson  Savings  Bank. 

to  the  conclusion  that  it  is  incumbent  upon  them  at  once  to  close  the  doors 
of  the  bank,  and  abandon  the  objects  for  which  the  institution  was  incorpo- 
rated, the  cashier  may  lawfully  meet  all  demands  made  upon  it,  up  to  the 
moment  the  bank  suspends  payment,  and  all  such  payments  are  valid.  But 
he  cannot,  while  he  is  dealing  out  to  importunate  creditors  their  legal  de- 
mands with  one  hand,  with  the  other,  place  the  assets  of  the  bank  in  his 
pocket  for  absent  friends  and  favorites.  The  diligent  creditor  may  acquire 
rights  which  the  law  will  not  disturb,  but  there  is  a  distinction  between  a 
Voluntary  preference  of  a  creditor  by  the  debtor,  and  a  payment  forced 
from  him  by  an  importunate  creditor. 

(So  where  one  of  the  directors  of  the  bank  puts  a  note  in  his  pocket  to  deliver 
to  a  creditor,  for  the  purpose  of  giving  him  a  preference,  to  which  he  was 
not  entitled  by  any  diligence  of  his  own,  it  was  held  not  to  be  a  payment  in 
the  usual  course  Of  dealing. 

The  assignment  and  transfer  of  promissory  notes,  in  contemplation  of  the  in- 
solvency of  an  incorporated  company,  is  declared  by  the  act  to  be  utterly 
null  and  void  as  a<rainst  creditors,  and  where  a  voluntary  preference  is  given 
to  a  creditor,  for  the  sole  purpose  of  giving  him  an  advantage  over  other 
creditors,  and  under  such  circumstances  that  it  cannot  be  said  to  be  made  in 
the  ordinary  course  of  business,  it  is  in  direct  violation  of  the  uecond  section 
of  the  act. 


On  the  24th  day  of  September,  1851,  the  Peoples  Bank 
of  Paterson  was,  by  a  decree  of  this  court,  declared  insol- 
vent, and  the  complainants  were  appointed  receivers,  un- 
der the  act  entitled,  "  An  act  to  prevent  frauds  by  incor 
porated  companies,"  approved  April  15th,  1846. 

The  bill  charges,  that  on  the  24th  day  of  September, 
1851,  the  bank  was  the  owner  of  the  following  promissory 
notes:  Richard  "Wessels'  note  for  $750,  or  thereabouts, 
payable  on  the  15th  October,  1851 ;  Horatio  Moses'  note 
for  $286,  payable  September  3d,  1851;  Joseph  "Wood's 
note  for  $100,  payable  June  23d,  1850 ;  Samuel  Pope's 
note  for  $444.94,  payable  July  30th,  1851,  and  Ulpian 
Vansinderin's  note  for  $412.20,  payable  September  29th, 
1850 ;  that  on  the  morning  of  the  24th  September,  1851, 
Dwight,  the  redeeming  agent  of  the  bank  in  New  York, 
refused  to  redeem  the  notes  01  the  bank ;  that,  about  one 
o'clock  of  that  day,  H.  C.  Stimson,  the  cashier  of  the 
bank%  and  also  a  director,  returned  in  great  haste  from 
the  city  of  New  York,  and  called  together  the  board  of 
.directors  of  the  bank,  and  informed  them  of  the  refusal 


FEBBUAEY  TEEM,  1854.  '  .      15 

Keceivers  of  Peoples  Bank  o.  Piiterson  Savings  Bank. 

of  Dwight  to  redeem ;  and  stated,  that  in  consequence 
thereof,  the  bank  could  not  continue  its  business  any 
longer,  and  tliat  nothing  could  save  it  from  failing,  and  it 
must  stop  payment ;  and  it  was  then  determined,  upon  a 
hasty  consultation  among  the  persons  present,  that  the 
bank  should  suspend;  that  in  pursuance  of  such  deter- 
mination, the  door  of  the  bank  was  closed,  with  a  public 
notice,  placed  on  the  outside,  declaring  that  the  bank  had 
suspended  and  stopped  payment,  and  that  the  door  was 
closed  to  prevent  persons  from  demanding  payment  who 
had  deposits  or  claims  against  the  bank. 

The  bill  further  states  that  on  this  day  the  Paterson 
Savings  Bank  had  on  deposit  in  the  Peoples  Bank  the  sum 
of  nineteen  hundred  dollars ;  that  Hiram  Hathaway  was 
a  manager  or  trustee  in  the  said  Savings  Bank,  and  was 
also  a  director  in  the  Peoples  Bank,  and,  as  such  director, 
was  present,  and  acted  at  the  board  at  the  meeting  of 
the  24th  September,  when  it  was  determined  the  bank 
should  stop  payment ;  that  after  it  was  determined  by 
the  directors  that  the  bank  should  stop  payment,  and  its 
doors  should  be  closed,  the  said  Hathaway  took  and  re- 
ceived, from  among  the  assets  and  notes  of  the  said  Peo- 
ples Bank,  the  said  five  promissory  notes  before  mentioned, 
and  gave  his  check  for  the  same,  as  a  trustee  or  manager 
of  the  said  Savings  Bank,  for  the  amount  of  the  said 
several  promissory  notes,  and  afterwards  delivered  the 
notes  to  the  said  Savings  Bank ;  that  this  was  done  with- 
out the  order  of  the  directors  of  the  bank,  and  that  the 
delivery  of  the  notes  was  made  by  the  cashier  without  an- 
thority.  The  bill  prays  that  the  Savings  Bank  may  ac- 
oount  for  the  proceeds  of  these  notes. 

The  answer  of  the  Savings  Bank  admits  substantially 
the  facts  as  charged  in  the  bill,  witli  these  additional  facts  : 
that  the  cashier  was  allowed  by  the  directors  to  assign 
and  dispose  of  the  notes  and  bills  belonging  to  the  bank, 
and  without  any  special  order  of  the  board  of  directors ; 
that  the  said  Hathaway  received  from  G.  M.  Stiinson, 


16  '  CASES  IN  CHANCEKY. 


Eeceivers  of  Peoples  Bank  v.  Paterson  Savings  Bank. 


the  acting  cashier  and  clerk,  with  the  knowledge  of  the 
directors,  the  said  several  promissory  notes,  except  the 
note  of  Vansinderin,  for  the  purpose  of  paying  the  debt 
due  from  the  Peoples  Bank  to  the  Savings  Bank,  and 
then  gave  his  check,  as  manager,  for  the  amount,  and  de- 
livered the  same  to  the  treasurer  of  the  Savings  Bank; 
that  up  to  time  Hathaway  gave  his  check,  the  Peoples 
Bank  paid  in  specie  all  demands  made  upon  them ;  that 
the  Van  Sinderin  note  was  assigned  about  ten  o'clock  in 
the  morning  of  that  day;  that  afterward,  and  after  the 
Peoples  Bank  had  been  decreed  insolvent  by  the  Court 
of  Chancery,  the  Savings  Bank  passed  a  resolution  ap- 
proving of  the  act  of  Hathaway,  in  giving  his  check  and 
receiving  the  said  notes. 

G.  M.  Stimson,  the  only  witness  sworn,  testified,  among 
other  things,  that  in  the  morning,  the  cashier  told  him, 
that  if  Dwight  refused  to  redeem,  the  bank  must  stop; 
that  the  witness  then  requested  him  to  give  him  the  Van 
Sinderin  note  for  the  Savings  Bank,  and  he  did  there- 
upon deliver  him  the  note,  and  charged  it  to  the  Savings 
Bank,  and  that  no  check  or  draft  was  given  for  the  same. 
He  requested  the  note,  on  account  of  what  the  cashier 
said  to  him,  and  took  it  in  case  the  bank  stopped  pay- 
ment. It  was  included  in  Hathaway's  check,  but  whether 
delivered  to  him  then,  he  can't  tell ;  that  between  one  and 
two  o'clock,  the  other  notes  were  handed  to  him  by  the 
cashier,  for  the  purpose  of  giving  them  to  Mr.  Hatha* 
way  or  one  of  the  managers  of  the  Savings  Bank.  He 
had  never  been  requested  or  authorized  by  the  manager 
of  the  Savings  Bank,  or  any  one  else,  to  receive  the  note* 
for  them. 

THE  CHANCELLOR.  If  the  legality  of  this  transaction 
can  be  maintained,  then  it  follows  that  after  a  bank  has 
become  so  hopelessly  insolvent  that  the  directors  have  been, 
forced  to  the  conclusion  that  it  is  incumbent  upon  them 
at  once  to  close  the  doors  of  the  bank,  and  abandon  the 


FEBRUARY  TERM,  1854.  17 

Receivers  of  Peoples  Bank  v.  Paterson  Savngs  Bank. 

» 

objects  for  which  the  institution  was  incorporated,  they 
may  employ  the  last  half  hour  of  existence  in  parcelling 
out  to  favorite  creditors  the  few  remaining  assets  of  the 
bank  still  within  their  control.  Nay,  it  follows  that  the 
cashier  of  the  bank  may,  after  the  directors  have  declared 
the  bank  insolvent,  and  have  determined  to  notify  the 
public  of  its  insolvency  before  the  directors  can  reach 
the  door  to  post  up  such  notice,  dispose  of  the  assets  at 
his  pleasure  to  the  creditors  of  the  bank.  For  this  is  not 
the  case  contended  for  by  the  counsel,  that  the  cashier  of 
a  bank  may  lawfully  meet  all  demands  made  upon  it  up 
to  the  moment  the  bank  suspends  payment.  This  he  may 
do  under  ordinary  circumstances ;  and  all  such  payments 
are  valid.  But  can  he  stand  behind  the  counter,  and  while 
he  is  dealing  out  to  importunate  creditors  their  legal  de- 
mands with  one  hand,  with  the  other  place  the  assets  of 
the  bank  in  his  pocket  for  absent  friends  and  favorites  ? 
The  diligent  creditor  may  acquire  rights  which  the  law 
will  not  disturb.  There  is  a  distinction  between  a  volun- 
tary preference  of  a  creditor  by  the  debtor,  and  a  pay- 
ment forced  from  him.  by  an  importunate  creditor.  This 
distinction  is  fully  recognised  in  the  administration  of  the 
law  in  referencs  to.  bankrupt  acts.  It  has  not  been  made, 
as  was  supposed  by  counsel,  in  consequence  of  any  pe- 
culiar provision  in  bankrupt  laws  respecting  such  pay- 
ments, but  upon  broad  principles  of  justice  to  carry  out 
the  object  of  those  laws. 

The  object  of  "  the  act  to  prevent  frauds  by  incorpo- 
rated companies  "  is  to  secure  to  the  creditors  of  such  in- 
stitutions an  equal  distribution  of  its  assets.  This  is  the 
primary  object  of  the  statute.  Any  act  done  with  the  view 
and  for  the  purpose  of  defeating  this  object,  is  a  fraud  . 
upon  the  act,  and  is  illegal. 

The  primary  object  of  this  act  being  the  same  as  that 
of  the  bankrupt  laws,  in  giving  a  construction  to  it  we 
may  properly  examine  those  general  principles  which 
have  been  established  by  the  courts  in  reference  to  trans- 


18  CASES  IN  CHANCEKY. 

Receivers  of  Peoples  Bank  x.  Paterson  Sayings  Bank. 

actions  under  tliose  laws.  And  I  may  remark  here,  that 
our  courts  have  always  recognized  the  object  and  provi- 
sions of  the  act  in  question,  and  the  bankrupt  laws,  to  be 
essentially  the  same.  In  the  case  of  The  State  Bank  v. 
Receivers  of  the  Sank  of  New  Brunswick,  2  Greenes  Ch.  R. 
270,  the  Chancellor  says,  "the  general  object  of  the  act 
and  the  provisions  made  to  effect  it,  are  essentially  the 
same  as  the  bankrupt  laws;  and  if  this  act  is  tc  be  con- 
sidered as  partaking  of  the  character  of  a  bankrupt  law, 
-  it  is  proper  to  apply  to  it  the  general  rules  that  govern  the 
system  where  it  is  in  use."  In  the  case  of  the  complain- 
ants in  this  present  suit  against  "  The  Paterson  Gas  Light 
Company  (3  Zdb.  291),  the  Chief  Justice  says,  "  the  act 
to  prevent  frauds  by  incorporated  companies,  so  far  as  re- 
lates to  the  estate  of  an  insolvent  corporation,  is,  in  all 
its  essential  elements,  a  bankrupt  law." 

Let  us  see,  then,  how  the  transaction  in  question  will 
bear  the  test  of  those  general  principles  which  the  courts 
have  applied  to  like  acts  under  bankrupt  laws. 

In  the  case  of  Ogden  and  Thomas  v.  A.  Jackson^  1  Johns. 
Rep.  378,  Spencer,  J.,  delivering  the  opinion  of  the 
court,  says,  "  Courts  of  law  consider  the  property  of  the 
bankrupt  completely  at  his  disposal  before  the  act  of 
bankruptcy  committed,  so  far  as  to  protect  a  creditor  in 
the  receipt  of  money  or  the  acquisition  of  goods,  if  done 
in  the  usual  course  of  business :  indeed,  if  money  be  ob- 
tained, or  security  given,  when  a  bankruptcy  is  inevita- 
ble, and  even  contemplated  by  the  bankrupt,  such  acts 
are  valid,  if  the  effect  of  measures  taken  by  the  creditor. 
It  will  not,  however,  be  permitted  that  a  person,  insol- 
vent at  the  time,  and  contemplating  an  act  of  bankrupt- 
cy, should  parcel  out  his  estate  to  such  creditors  as  he 
may  see  fit  to  prefer ;  this  is  opposed  to  the  very  genius 
of  the  bankrupt  laws,  which  proceed  upon  a  principle  of 
equality  and  a  just  distribution."  Also  Harrison  v.  Sterry, 
5  Cranch  301. 

These  decisions  were  made  in  reference  to  the  bankrupt 


FEBEUAKY  TERM,  1854  19 

Receivers  of  Peoples  Bank  u.  Pater.«on  Savings  Bank. 

law  of  1800.  In  that  law  there  is  no  provision  declaring 
preferences  invalid,  and  the  decisions  were  not  made  in 
contemplation  of  any  particular  provisions  of  the  act; 
but  the  principle  applied  was,  that  the  preferences  were 
in  violation  of  the  spirit  and  general  tendency  of  the  act, 
and  defeated  its  primary  object.  I  mention  this  circum- 
stance because  counsel  laid  great  stress  on  the  fact,  that 
in  the  act  we  are  considering  there  is  no  particular  pro- 
vision avoiding  such  preferences. 

In  Alderson  and  others'  Assignees  v.  Temple,  4  JBarr.  2240, 
Lord  Mansfield  says,  "if  a  bankrupt  in  course  of  pay- 
ment pays  a  creditor,  this  is  a  fair  advantage  in  the  course 
of  trade ;  or  if  a  creditor  threatens  legal  diligence,  and 
there  is  no  collusion,  or  begins  to  sue  a  debtor,  and  he 
makes  an  assignment  of  part  of  his  goods,  it  is  a  fair 
transaction,  and  what  a  man  might  do  without  having 
any  bankruptcy  in  view."  But  it  never  entered  into  the 
head  of  any  judge  to  say,  "  that  a  man,  in  contemplation 
of  an  act  of  bankruptcy,  could  sit  down  and  dispose  of 
all  his  effects  to  the  use  of  different  creditors,  for  that 
would  be  a  fraud  upon  the  acts  of  bankruptcy.  But  if 
done  in  a  course  of  trade,  and  not  fraudulent,  it  may  be 
supported." 

How  can  it  be  said  that  this  was  a  payment  made  in 
the  usual  course  of  dealing  ?  It  was  the  case  of  an  ordi- 
nary deposit  in  the  bank.  No  demand  was  made  by  the 
creditor.  It  was  not  made  in  the  ordinary  way.  The  pay- 
ment was  not  in  money,  but  in  promissory  notes.  It  was 
not  made  to  the  creditor  or  to  his  authorized  agent.  It 
was  this,  and  nothing  more  or  less — one  of  the  directors 
of  the  bank  put  the  note  in  his  pocket  to  deliver  to  the 
creditor,  for  the  purpose  of  giving  him  a  preference,  to 
which  he  was  not  entitled  by  any  diligence  of  his  own. 

See,  also,  Linton,  assignee,  v.  Bartlet,  3  Wil.  47  ;  liar- 
man  v.  fisher,  Cowp.  124. 

But  it  appears  to  me  that  the  transfer  of  these  notes 
was  in  direct  violation  of  the  second  section  of  the  act. 


20  CASES  IN  CHANCEKY. 

Receivers  of  Peoples  Bank  v.  Paterson  Savings  Bank. 

It  was  an  assignment  and  transfer  in  contemplation  of 
the  insolvency  of  the  company ;  and  such  a  transfer,  the 
act  declares,  shall  be  utterly  null  and  void  as  against  cre- 
ditors. But  it  was  said  that  it  wras  not  intended,  by  this 
provision,  to  invalidate  all  acts  done  in  the  ordinary 
course  of  business.  Admit  it;  but  can  an  act  which  is 
done  in  contemplation  of  bankruptcy,  a  voluntary  prefer- 
ence which  is  given  to  a  creditor  for  the  sole  purpose  of 
giving  him  an  advantage  over  other  creditors,  and  under 
the  circumstances  which,  in  this  case,  the  transfer  was 
made,  be  said,  with  any  propriety,  to  be  made  in  the  or- 
dinary course  of  business  ?  In  the  case  referred  to  in  £ur- 
roughs,  Lord  Mansfield  said  of  the  transfer  in  that  case, 
"  It  was  not  done  in  the  ordinary  cmwse  of  trade,  for  there 
never  was  any  dealing  between  the  parties  in  sending  en- 
dorsed notes."  With  equal  force  and  propriety  may  it  be 
said  in  this  case,  there  never  was  any  dealing  between 
the  parties  in  paying  ordinary  deposits  by  the  promissory 
notes  of  individuals. 

Again.  It  was  asked,  in  argument,  where  was  the  ne- 
cessity of  the  act  providing  that  an  injunction  should  be 
issued  to  restrain  the  company,  its  officers  and  agents, 
from  paying  out,  selling,  assigning,  or  transferring  any  of 
the  estate,  moneys,  funds,  &c.,  of  the  said  company,  if 
such  transfers  were  void  without  the  injunction  ?  The  an- 
swer, I  think,  is  obvious.  The  injunction  prohibits  all 
payments  and  transfers.  Without  the  injunction,  they 
were  all  valid,  except  such  as  were  fraudulent ;  and  all  were 
fraudulent  which  were  made  in  contemplation  of  bank- 
ruptcy, and  for  the  purpose  not  of  paying  their  debts  in 
the  ordinary  course  of  business,  but  to  defeat  the  object 
of  the  act,  and,  in  view  of  insolvency,  giving  an  undue 
preference  to  particular  creditors.  It  is  very  plain  to  be 
seen  that  a  bank  may  be  in  such  a  condition  as  to  render 
it  very  proper  for  the  court  to  interfere  by  injunction  un- 
der the  act ;  and  yet,  without  such  interference,  the  di- 
rectors might  go  on  bona  fide  in  the  ordinary  transaction 


FEBEUAKY  TEEM,  1854.  21 


Terhune  ».  Colton 


of  the  business  of  the  bank,  and  all  transfers  made  under 
such  circumstances  would  be  good.  Why  ?  Because  they 
were  made  not  in  contemplation  of  bankruptcy,  but  to 
prevent  that  very  catastrophe.  The  payment  or  transfer 
of  property  in  the  usual  course  of  trade,  if  made  to  sus- 
tain the  bank,  and  continue  its  business,  is  a  ~bona  fide 
payment  or  transfer.  If  contemplating  bankruptcy,  and 
in  view  of  that,  and  to  secure  some  advantage  on  that 
account,  such  payment  or  transfer  is  made,  it  is  not  bona 
jide,  but  defeats  the  object  of  the  act,  and  on  that  account 
is  unlawful. 

The  complainants  are  entitled  to  a  decree  in  their  fa- 
vor. 

CITED  in  Kinstlla's  Ad.  v.  Cataract  City  Bk.,  3  C.  E.  Gr.  169 ;  In  re.  Green  Pond 
B    R.  Co.,  13  B.  R.  120. 


HENBY   S.   TERHUNE  vs.  ASA   S.    COLTON  and  wile  and 

others. 

No  one  can  question  a  decree,  except  a  party  to  it,  or  some  one  whose  rights  are  im- 
paired bj  it. 

Where  a  complainant  did  not  claim  under  any  party  to  a  decree,  and  his  lien 
upon  mortgaged  premises  was  acquired  subsequent  to  it,  and  he  did  not  im- 
peach it  for  fraud,  mistake,  or  accident,  but  on  the  contrary,  admitted  that 
the  decree  was  entered  in  good  faith,  between  the  parties ;  and  there  wa  s 
not.  ing  connected  with  the  suit,  or  the  in  inn. T  in  which  the  decree  was  en- 
tered, or  in  the  claim  upon  which  it  was  founded,  to  justify  the  court  in  refusing:  to 
protect  and  enforce  the  rights  of  the  respective  parties  under  the  decree,  the  court 
•would  not  go  behind  the  decree. 

Where  a  legacy  hud  been  made  a  lien  ui>on  a  farm,  which  the  testator  devised 
to  his  son.  who  was  the  executor;  and  the  will  directed  the  legacy  to  be 
paid  in  tbree  ainiril  instalments  without  interest,  and  directed  tin-  executor 
to  invest  the  same,  and  apply  the  interest  to  the  support  and  education  of  the 
legatee,  until  she  should  arrive  at  the  age  of  twenty-one  years,  at  which 
period  the  principal  was  to  to  paid;  and  Hubsequently  the  executor  mort- 
gaged the  farm,  it  was  held  thai  the  legacy  was  a  subsisting  lien  on  the  pre- 
mise*, notwithstanding  a  final  settlement  of  the  executor  in  the  Orphan* 
Court,  in  which  he  had  prayed  allowance  for  the  legacy ;  the  executor  could 
not  release  the  land  by  simply  charging  the  legacy  to  himself.  The  nill 
made  the  legacy  a  hen  upon  the  land  until  it  WHS  actually  paid.  Nor  was 
the  land  released  by  a  marriage  settlement,  in  which  the  executor  was  made 


22  CASES  IX  CHANCERY. 

Receivers  of  Peoples  Bank  t>.  Paterson  Savings  Bank. 

a  trustee  to  secure  to  the  legatee  her  separate  estate  free  from  the  control  and 
liability  of  her  intended  husband,  when  there  was  nothing  in  the  settlement  to 
show  that  it  was  the  intention  of  the  parties,  by  that  deed,  to  release  the  land, 
and  to  take  the  personal  security  of  the  executor  for  the  legacy,  and  the  legal  con- 
struction of  the  deed  did  not  necessarily  produce  that  effect. 

It  was  apparent  that  the  money  had  never  been  received  to  pay  the  legacy,  that 
it  existed  in  no  other  way  than  as*  a  debt  due  to  the  legatee,  secured  upon  the 
lands  of  the  executor,  and  while  that  debt  and  security  bed  been  assigned  to  the 
trustee  with  power  to  change  the  security,  it  never  was  in  fact  changed.  The 
executor  and  trustee,  in  such  a  c  ise  cannot  interpose  that  trust  deed  as  a  defence 
against  a  claim  of  the  legicy  as  a  lien  upon  the  land. 

An  attorney  has  no  right  to  give  up  the  security  of  his  clients,  unless  he  receives 
actual  payment,  or  is  specially  authorized  to  do  so;  but  where  there  is  evidence 
enough  of  the  acquiescence  of  the  client  in  the  agreement,  it  maybe  inferred  that  a 
solicitor  had  special  authority. 

A  debt  of  reeorl  cannot  be  released  by  parol.  How  far  a  declaration  that  a  decree 
was  satisfied,  would  bind  a  party  against  one  who  upon  the  faith  of  it  has  advanced 
money,  is  another  question. 

The  assignee  of  the  executor  made  an  arrangement  to  sell  the  farm,  that  money 
enough  should  be  raised  to  discharge  the  decree,  so  that  a  clear  title  iright 
be  given  te  the  man  who  should  loan  the  money.  Bat  the  understanding  hnd 
not  been  carried  out,  nor  the  decree  discharged,  although  the  parties  sup- 
posed it  was.  The  lien  in  such  case  cannot  be  postponed  to  a  subsequent 
encumbrancer,  unless  it  can  be  shown  that,  by  some  act  of  those  claiming 
under  the  execution,  he  has  been  induced  to  loan  his  money  upon  a  false 
security. 

Honest  efforts  on  the  part  of  those  having  claims  umier  a  decree  to  secure  their 
deb:,  consistent  with  the  fact,  that  the  debt  was  acknowledged  due,  and  was 
secured  by  the  decree,  do  not  prove  that  they  released  their  security  or  abandoned 
their  rights  under  the  decree. 


The  bill  charges  that  J.  C.  Schenck,  deceased,  being 
indebted  to  James  Bishop  in  the  sum  of  $6000  for  money 
lent,  executed  to  J.  B.  a  bond  and  mortgage,  to  secure 
the  same,  on  a  tract  containing  157  acres  of  land  in  the 
township  of  West  Windsor,  in  the  county  of  Middle- 
sex ;  that  J.  B.  assigned  the  said  bond  and  mortgage  to 
the  complainant ;  that  complainant  filed  his  bill  in  this 
court  on  the  said  mortgage,  and  on  the  15th  of  December, 
1846,  obtained  a  decree. to  sell  the  mortgaged  premises, 
issued  an  execution  thereon,  and  caused  the  same  to  be 
sold,  and,  on  the  10th  day  of  May,  1847,  himself  became 
the  purchaser,  at  the  sheriff's  sale,  for  the  sum  of  $8000, 
and  received  a  deed  from  the  sheriff ;  that  under  the  deed 


Terhune  v.  Col  ton. 


he  went  into  the  possession,  and  still  possesses  the  same  ; 
that  at  the  time  he  purchased,  he  had  not  the  slightest 
intimation  of  any  prior  lien  or  encumbrance,  and  supposed 
there  was  none,  until  he  was  surprised  to  find  the  pro- 
perty advertised  for  sale  under  an  execution  out  of  this 
court,  issued  on  the  21st  of  February  1837,  in  a  cause  in 
which  Caleb  Johnson  and  Enoch  Johnson  were  complain- 
ants, and  John  C.  Schenck,  Asa  S.  Colton  and  Margaret 
his  wife,  William  Schenck  and  Isaac  Story,  executors  of 
James  Stoddard,  deceased,  were  defendants,  directed  to 
the.  sheriff  of  Middlesex,  commanding  him  to  make  sale 
of  the  same  tract  of  157  acres,  and  out  of  the  proceeds  of 
sale  to  pay — first,  to  Asa  S.  Colton  and  wife  $1724.38,  to 
William  Schenck  the  like  sum,  being  the  amount  due  on 
their  legacies  secured  on  the  said  premises ;  second,  to 
pay  complainant  Caleb  Johnson  $4904,  and  to  the  com- 
plainant Enoch  Johnson  $2697.20,  being  the  sums  secured 
by  their  mortgages ;  third,  to  pay  unto  Caleb  Johnson 
$2441,  due  on  his  mortgage ;  fourth,  to  James  Story,  ex- 
ecutor, $2642.06  on  his  mortgage. 

That  the  said  sale  was  advertised  by  A.  W.  Brown,  late 
sheriff  of  the  county  of  Middlesex,  under  the  direction 
of  Asa  S.  Colton  and  William  Schenck,  two  of  the  de- 
fendants in  the  suit  mentioned. 

That  the  legacies  referred  to  were  legacies  bequeathed 
to  the  said  Margaret  and  William  by  the  will  of  their 
grandfather,  Joseph  Schenck,  bearing  date  19th  of  Feb- 
ruary, 1822.  Joseph  Schenck  devised  to  his  son,  the  said 
John  S.,  his  homestead  place,  containing  about  256  acres, 
including  the  premises  in  question,  and  several  lots  of  land. 
lie  also  made  some  bequests  of  personal  property,  and  in 
consideration  of  the  said  devises  and  bequests,  he  directed 
him  to  pay  to  Margaret  and  William  the  sum  of  $1953 
equally  between  them,  in  three  equal  annual  payments. 
Other  legacies  were  given  to  William  and  Margaret,  and  the 
executors  were  directed  to  place  out  at  interest  the  amount 
of  all  the  legacies  given  them,  and  apply  the  interest  to 


24  CASES  IN  CHANCEKY. 


Ter'uune  v.  Colton. 


their  support  and  education,,  until  they  arrived  at  the  age 
of  twenty-one  years,  when  the  principal  was  to  be  paid 
them.  John  C.  Schenck  and  his  brother,  E.  C.  S.,  were 
appointed  executors,  but  J.  C.  S.  alone  acted.  Jos.  S., 
testator,  died  9th  November,  1822. 

The  bill  further  charges  that  the  complainant  does  not 
know  what  payments  on  account  of  said  legacies  of  $1953 
were  made  between  the  tune  when  the  same  became 
payable  and  the  year  1833,  but  that  the  interest  was  ap- 
plied as  directed. 

That  in  1833,  a  marriage  took  place  between  the  said 
Margaret  and  the  said  Asa  S.  Colton,  and  before  it  was 
solemnized,  a  marriage  settlement  was  entered  into  be- 
tween the  said  A.  S.  C.  and  M.  S.  and  J.  C.  S.,  bearing 
date  on  the  18th  day  of  February,  1833  ;  that  the  com- 
plainant has  no  copy  of  the  instrument,  but  believes  that 
by  the  said  deed  of  trust,  the  whole  amount  of  principal 
and  interest  due  at  that  time  to  the  said  Margaret  on  ac- 
count of  said  legacy  was,  by  her,  with  the  consent  of  her 
intended  husband,  transferred  to  the  said  J.  C.  S.,  as  her 
trustee,  and  to  be  held  by  him  for  her  sole  and  separate 
use.  At  this  time  the  said  trustee  was  a  man  of  large 

O 

property  and  undoubted  credit.  The  bill  insists,  that  ad- 
mitting the  legacy  to  Margaret  to  have  been  originally  a 
lien  on  the  premises  in  question,  yet  that  it  ceased  to  be 
so  from  the  time  of  the  execution  of  the  said  deed  oi 
trust ;  that  the  whole  of  said  legacy  was  in  fact  paid  by  J. 
C.  S.  to  the  said  Margaret,  and  received  by  him  as  trustee 
and  from  thenceforth  was  no  longer  a  lien  ;  that  the, 
money  was  borrowed  of  Caleb  and  Enoch  Johnson  aftei 
this,  and  ^the  mortgage  executed  to  them  on  the  land  as 
free  from  encumbrance;  that  the  said  C.  J.  and  E.  J., 
relying  upon  the  assurances  of  the  said  J.  C.  Schenck, 
that  it  was  so  free,  loaned  him  the  sum  of  $6200,  of  which 
C.  J.  furnished  $4000  and  E.  J.  $2200,  and  took  said 
mortgage  to  secure  the  payment  upon  the  said  157  acres 
of  land,  being  the  same  property  now  advertised  for  sale 


FEBRUARY  TEEM,  1854.  25 


Terhune  v.  Colton. 


by  sheriff  Brown.  And  on  the  4th  day  of  June,  1833, 
the  said  J.  C.  Schenck  made  another  mortgage  to  the  said 
Caleb  Johnson  to  secure  $2000  on  the  same  land. 

That  a  bill  was  filed  on  the  7th  day  of  March,  1836,  by 
the  Johnsons  on  their  mortgages ;  that  A.  S.  Colton  and 
wife  and  William  Schenck  were  made  parties  defendants, 
but  entering  no  appearance  or  filing  no  answer,  a  decree 
pro  confesso  was  taken  against  them ;  that  an  answer  was 
put  in  by  the  said  J.  C.  Schenck,  insisting  that  the  said 
legacy  of  $1950  was  a  charge  upon  the  said  mortgaged 
premises,  and  entitled  to  priority  of  payment  over  the 
mortgages  of  Caleb  and  Enoch  Johnson.  The  answer 
was  filed  October  14th,  1836.  On  the  19th  March  pre- 
ceding the  said  J.  C.  S.  made  an  assignment  for  the 
benefit  of  his  creditors;  that  before  any  evidence  was 
taken  in  the  cause,  and  while  the  said  C.  J.  and  -E.  J. 
were  preparing  to  resist  the  claim  of  the  said  legacies,  an 
agreement  was  entered  into  between  the  said  C.  J.  and  E. 
J.,  on  the  one  hand,  and  the  said  J.  C.  Schenck,  A.  S.  C. 
and  wife,  and  W.  Schenck,  on  the  other,  by  which  it  was 
agreed  that  a  decree  should  be  made  in  the  said  cause  de- 
claring the  said  legacy  to  be  a  lien  upon  the  said  mort- 
gaged premises,  and  entitled  to  be  first  paid  out  of  the 
same,  and  that  an  execution  should  issue  in  conformity 
with  the  said  decree,  but  that  the  moneys  arising  from 
the  sale  of  the  said  mortgaged  premises  should  be  applied, 
in  the  first  place,  to  the  payment  of  the  several  mortgages 
of  the  said  C.  and  E.  J.  and  the  costs  of  the  said  suit, 
and  the  residue  to  the  payment  of  the  said  legacy :  said 
agreement  was  .in  writing,  and  bears  date  the  6th  of  Fe- 
bruary, 1837,  and  was  signed  by  R.  S.  Field,  solicitor  of 
the  complainants,  Samuel  R.  Hamilton,  solicitor  of  J.  C. 
Schenck,  and  James  S.  Green,  solicitor  of  the  said  A.  S. 
Colton  and  wife  and  William  Schenck. 

That  on  the  7th  February,  1837,  in  pursuance  of  fiaid 
agreement,  a  decree  was  made  and  an  execution  issued 
to  the  sheriff  of  the  county  of  Middlesex,  being  the  same 

VOL.  n.  c 


26  CASES  IN  CHAKCERY. 


Terhune  u.  Colton. 


execution  under  which  the  premises  in  question  are  now 
advertised  for  sale.  Upon  receiving  said  execution,  the 
sheriff  advertised  the  premises  for  sale  on  the  12th  of  May, 
1837 ;  and  the  bill  charges  that  on  the  30th  day  of  March, 
1837,  the  said  execution  was  settled  by  the  parties,  and  a 
new  arrangement  made  between  them ;  that,  in  the  mean- 
time, Isaac  Story,  the  assignee  of  J.  C.  S.,  had  advertised 
for  sale  the  homestead  farm  of  the  said  J.  C.  S.,  contain- 
ing 256  acres,  and  including  the  premises  in  question ; 
and,  on  the  said  30th  of  March,  the  same  was  purchased 
by  John  Gulick  for  the  sum  of  $67,  subject  to  encum- 
brances ;  that  this  purchase  was  made  by  John  Gulick  for 
the  benefit  of  J.  C.  S.,  and  with  the  intention  of  subse- 
quently conveying  the  property  to  him ;  that,  on  the  same 
day,  a  mortgage  was  executed  by  the  said  Gulick  to  James 
Bishop  on  157  acres  of  land,  being  part  of  the  said  home- 
stead farm,  to  secure  the  payment  of  $5969.46 ;  that  the 
said  mortgage  was  made  cotemporaneously  with  the  set- 
tlement of  the  said  execution ;  that  the  arrangement  was 
this :  the  said  Bishop  was  willing  to  take  a  mortgage  on 
the  said  157  acres,  provided  it  could  be  cleared  of  all  ex- 
isting encumbrances,  which  could  only  be  effected  by  a 
satisfaction  of  the  execution  issued  out  of  Chancery  afore- 
said ;  that  with  the  money  advanced  by  Bishop,  together 
with  other  moneys  raised  by  the  said  John  Gulick,  the 
whole  .amount  due  the  Johnsons  and  their  costs  were  paid, 
and  the  sheriff 's  execution  fees. 

The  bill  further  states  that  in  what  way  the  legacy 
due  Margaret  and  William  was  satisfied  and  arranged,  the 
complainant,  at  this  distance  of  time,  and  in  consequence 
of  the  death  of  J.  C.  S.,  has  not  been  able  to  ascertain ; 
that  in  reference  to  the  said  "William  Schenck,  the  com- 
plainant believes  that  the  amount  due  him  wras  secured 
by  certain  bonds  and  mortgages  executed  to  him  by  the 
said  J.  C.  S.,  which  were  afterwards  paid  up,  with  the  ex- 
ception of  a  small  balance  of  96.24,  for  which  he  received 
in  payment  a  note  of  the  said  J.  C.  S.;  that  prior  to  the 


FEBKUAEY  TEEM,  1854.  27 


Terhune  v.  Colton. 


settlement,  the  said  W.  S.  had  presented  to  the  assignee 
his  claim ;  that  exceptions  were  filed  in  the  Court  of  Com- 
mon Pleas,  upon  the  ground  that  it  had  already  been  paid, 
and  the  exceptions  were  sustained,  and  the  claim  disal- 
lowed. 

The  bill  charges,  that,  in  1839,  the  said  John  Gulick 
conveyed  to  the  said  J.  C.  S.  the  said  farm  of  256  acres, 
including  the  premises  in  question,  and  that  thereupon 
the  said  James  Bishop  agreed  that  the  bond  and  mortgage 
of  the  said  J.  C.  S.  should  be  substituted  in  place  of  the 
bond  and  mortgage  previously  executed  to  him  by  the 
eaid  John  Gulick,  as  aforesaid ;  and  accordingly,  on  the 
28th  of  June  1839,  the  said  John  C.  Schenck  executed  to 
the  said  James  Bishop  his  bond  and  mortgage  for  $6000, 
which  was  afterwards  assigned  to  the  complainant,  the 
said  J.  C.-  S.  assuring  the  said  James  Bishop  that  there 
was  no  incumbrance  whatever  upon  the  said  premises 
prior  to  the  said  mortgage ;  that  the  execution  out  of 
Chancery  had  been  settled,  and  that  the  said  legacy  was  no 
longer  a  lien  upon  the  said  property. 

The  prayer  of  the  bill  is,  that  this  court,  by  its  or- 
der and  decree,  may  perpetually  restrain  the  said  Asa  S. 
Colton  and  Margaret  his  wife  and  William  Schenck  from 
proceeding  to  enforce  the  said  execution  by  a  sale,  &c. ; 
that  they  may  be  decreed  to  have  no  right  or  interest  in 
the  said  premises  by  virtue  of  the  said  decree  and  execu- 
tion, and  that  the  sheriff  may  be  restrained  from  selling ; 
and  that  the  complainant  may  have  such  other  and  further 
relief  in  the  premises  as  the  nature  of  the  case  may  re- 
quire, &c. 

The  bill  was  answered  by  Asa  S.  Colton  and  wife  and 
William  Schenck.  They  deny  that  there  was  any  arrange- 
ment made,  with  their  consent,  as  to  settling  the  decree 
or  execution,  and  aver,  that  if  any  such  settlement  was 
made,  it  was  without  their  knowledge  or  consent.  They 
declare  that  the  whole  amount  is  due  them  on  the  decree. 
They  deny  the  authority  of  their  solicitor  to  make  for 


28  CASES  IN  CHANCEBY. 


Terhune  t>.  Colton. 


them  the  agreement  alleged  to  have  been  made  respecting 
the  entry  of  the  decree. 

H.  S.  Field  and  W.  L.  Dayton,  for  complainant. 
C.  Parker  and  A.  0.  Zdbriskie,  for  defendants. 

THE  CHAHCELLOB.  I  do  not  see  anything  in  this  case 
to  justify  me  in  going  behind  the  decree  of  this  court  of 
the  7th  of  February,  1837.  No  one  can  question  it,  except 
a  party  to  that  decree,  or  some  one  whose  rights  are  im- 
paired by  it.  If  its  object  was  to  defeat  creditors  who 
then  had  existing  claims,  or  to  protect  the  property  of  the 
mortgagor  from  future  creditors,  such  creditors  would  be 
at  liberty  to  impeach  it.  The  complainant  does  not  claim 
under  any  party  to  the  decree.  His  lien  upon  the  mort- 
gaged premises  was  acquired  subsequent  to  it.  He  does 
not  impeach  it  for  fraud  mistake  or  accident  ;  on  the 
contrary,  the  bill  admits  that  the  decree  was  entered  in 
good  faith  between  the  parties.  Nor  is  there  anything 
connected  with  the  suit,  or  the  manner  in  which  the  de- 
cree was  entered,  or  in  the  claims  upon  which  it  was 
founded,  to  justify  the  court  in  refusing  to  protect  and 
enforce  the  rights  of  the  respective  parties  under  the  de- 
cree. The  rights  of  the  complainants  under  it  are  not 
controverted ;  but  it  is  the  claim  of  Asa  S.  Colton  and 
his  wife,  and  of  William  Schenck,  that  is  questioned. 

But  as  this  a  case  of  great  interest  and  importance 
to  the  complainant,  and  as  he  must  be  an  innocent  suf- 
ferer and  remediless,  if  he  cannot  obtain  relief  in  this  suit, 
it  may  afford  him  some  satisfaction  to  know  that  the 
court  has  not  neglected  to  give  due  consideration  to  every 
feature  of  the  case,  presented  by  his  counsel  with  an  abil- 
ity which,  in  a  doubtful  case,  would  have  commanded 
success. 

What  then  was  the  claim,  upon  which  that  part  of  the 
decree  in  favor  of  the  Coltons  and  of  William  Schenck 


FEBRUARY  TERM,  1854.  29 


Terhune  v.  Colton. 


was  founded  ?  Joseph  Sclienck,  the  grandfather  of  Mar- 
garet Colton  and  William  Schenck,  bequeathed  to  them, 
by  his  will,  two  legacies,  one  of  $3547,  and  another  of 
$1953.  The  testator  made  this  last  legacy  a  lien  upon  his 
homestead  farm  which  he  had  devised  to  his  son  John  C. 
Schenck.  The  will  directed  the  legacy  to  be  paid  in  three 
annual  instalments  without  interest,  and  his  executors, 
John  C.  Schenck  and  Elias  T.  Schenck,  to  invest  the 
same,  and  apply  the  interest  to  the  support  and  education 
of  the  legatees  until  they  should  respectively  arrive  at  the 
age  of  twenty-one  years,  at  which  periods  their  respective 
proportion  of  the  principal  was  to  be  paid  them.  John 
C.  Schenck  mortgaged  one  hundred  and  fifty-three  acres 
of  the  homestead  farm  (the  whole  farm  embracing  two 
hundred  and  fifty-three  acres)  to  Caleb  and  Enoch  John- 
son, for  about  $8200.  The  Johnsons  filed  their  bill  to 
foreclose  their  mortgages,  and  made  the  Coltons  and  Wil- 
liam Schenck  parties  defendants  in  the  suit,  alleging  that 
they  claimed  some  lien  by  virtue  of  the  legacy  of  $1953 
under  the  will  of  their  grandfather.  John  C.  Schenck, 
only,  answered  the  bill,  and  he  set  up  the  legacy  as  a  subsist- 
ing lien,  alleging  that  no  part  of  it  had  been  paid.  The 
complainants  filed  a  replication.  The  parties  then,  by 
their  respective  solicitors,  entered  into  the  agreement  in 
writing,  and  in  conformity  to  this  agreement  the  decree 
was  made.  It  is  now  said  that  the  legacy  was  not,  at  that 
time,  a  lien  on  the  mortgaged  premises,  and  that  not 
decree  should  have  been  entered  for  it.  That  this  legacy 
had  not  at  that  time  been  actually  paid  is  beyond  dis- 
pute. How,  then,  had  the  land  been  released  from  the  en- 
cumbrance ? 

First ;  it  is  said  that  the  settlement  of  John  C.  Schenck, 
as  executor,  in  the  Orphans  Court,  operated  to  release  the 
land.  In  the  final  settlement  of  his  accounts,  John 
C.  Schenck  prayed  allowance  for  this  legacy,  and  it  was 
charged  to  him  as  executor;  it  is  insisted,  that  by 
this  settlement,  the  land  was  released.  In  the  account, 


30  CASES  IN  CHANCEKY. 


Terhune  v.  Colton. 


which  I  have  before  me,  this  legacy  is  not  allowed.  If 
there  is  an  exhibit  showing  this  allowance,  it  has  escaped 
me.  But  admitting  that  such  settlement  was  made,  how 
does  it  operate  to  release  the  land  from  this  legacy  ?  The 
will  directed  that  the  legacy  should  be  invested,  and  the 
interest  appropriated  for  the  benefit  of  the  legatees ;  and 
it  secured  the  payment  of  the  legacy  by  making  it  a  lien 
upon  the  land.  Could  John  C.  Schenck  discharge  the 
land  by  simply  charging  the  legacy  to  himself  as  execu 
tor  ?  If  he  could,  the  land  was  no  security  for  the  legacy ; 
and  the  legatees  had  nothing  better  than  the  mere  person- 
al security  of  the  executor.  The  will  makes  the  legacy  a 
lien  upon  the  land  until  it  is  actually  paid.  Suppose  the 
executor  had  prayed  allowance  for  payment  of  a  debt 
owing  by  the  testator  at  the  time  of  his  decease,  could  he 
plead,  or  set  up  in  any  way,  such  an  account  as  payment 
or  settlement  in  a  suit  brought  against  him  for  that  debt  ? 
Much  less  could  he,  when  he  was  the  debtor,  by  any 
such  act  change  the  character  of  the  debt,  or  its  security. 
But,  besides,  Margaret  and  William  Schenck  were  then 
infants.  Under  such  circumstances,  whatever  the  ac- 
counts of  the  executors  before  the  Orphans  Court  may 
show,  they  cannot  be  permitted  to  operate,  in  the  slight- 
est degree,  to  the  prejudice  of  these  defendants. 

Again,  it  is  insisted  that  the  marriage  settlement  be- 
tween Margaret  Schenck,  Asa  S.  Colton,  and  John  C. 
Schenck,  operated  as  a  legal  release  and  discharge  of  the 
mortgaged  premises  from  the  said  legacy.  The  object  oi 
that  settlement  was  to  make  John  C.  Schenck  a  trustee, 
in  order  to  secure  to  Margaret  her  separate  estate  free 
from  the  control  and  liability  of  her  intended  husband. 
The  question  is  whether  there  is  anything  in  the  settle- 
ment to  show  that  it  was  the  intention  of  the  parties,  by 
that  deed,  to  release  the  land,  and  to  take  the  personal 
security  of  John  C.  Schenck  for  the  legacy,  or  whether 
the  legal  construction  of  the  deed  must  necessarily  pro- 
duce that  effect  ?  The  deed,  after  reciting  particularly  the 


FEBRUARY  TERM,  1854.  31 


Terhune  v.  Colton. 


character  of  the  legacies,  then  recites  further  as  follows : 
"And  whereas  the  said  Margaret  Schenck,  one  of  the 
children  of  the  said  William  C.  Schenck,  deceased,  hath 
attained  the  age  of  twenty-one  years,  and  hath  had  a  full 
settlement  with  the  said  John  C.  Schenck,  acting  execu- 
tor of  the  said  Joseph  Schenck,  deceased,  on  which  set- 
tlement there  appears  due  to  the  said  Margaret  Schenek 
the  sum  of  $4256.92  from  the  said  John  C.  Schenck,  ex- 
ecutor as  aforesaid ;  and  whereas  a  marriage  is  agreed 
upon  and  intended  to  be  shortly  solemnized,  by  and  be- 
tween the  said  Asa  S.  Colton,  of  the  first  part,  and  the 
said  Margaret  Schenck,  of  the  second  part,  and  upon  the 
treaty  of  the  said  intended  marriage  it  was  agreed  upon, 
and  that  the  said  Margaret  Schenck  should  assign,  trans- 
fer, or  otherwise  convey,  the  fortune  to  which  she  is  en- 
titled under  and  by  virtue  of  the  last  will  and  testament 
of  Joseph  Schenck,  deceased,  her  grandfather,  or  from 
any  other  source  whatever,  unto  the  said  John  C.  Schenck, 
upon  the  trusts  herein  after  expressed  and  declared  of 
and  concerning  the  same."  Margaret  then  formally  as- 
signs to  John  C.  Schenck  all  and  any  sum  and  sums  of 
money  which  she  was  entitled  to  under  the  will  of  Joseph 
Schenck,  deceased,  and  all  the  property  which  at  law  or 
in  equity  she  was  entitled  to,  to  have,  hold,  take,  and  re- 
ceive the  same  in  trust  for  the  said  Margaret  until  her 
intended  marriage;  and  immediately  after  the  solemni- 
zation thereof,  to  place  out  the  same  at  interest  on  bond 
and  mortgage,  or  otherwise,  as  the  said  John  C.  Schenck 
might  think  best,  and  to  change  and  alter,"  &c. 

I  have  referred  to  all  the  parts  of  this  deed  upon  which 
the  complainant  relies  to  show  the  intention  of  the  par- 
ties, and.  the  legal  effect  of  the  deed  upon  the  question  in 
controversy.  I  do  not  see  anything  in  the  deed  to  show 
that  it  was  the  intention  of  the  parties  that  its  mere  exe- 
cution should  deprive  Margaret  Schenck  of  the  then  ex- 
isting lien  upon  the  land  for  her  legacy.  Nor  do  I  consi- 
der that  such  is  the  legal  construction  or  effect  of  the 


32  •     CASES  IN  CHANCERY. 

Terhune  v.  Colton. 

deed.  The  deed  recites  that  there  had  been  a  settlement 
between  the  parties,  and  that  a  certain  sum  was  found 
due  from  John  C.  Schenck  to  Margaret  Schenck.  There 
was  no  payment  of  the  amount  due,  but  it  was  merely 
ascertained  by  the  settlement  what  that  amount  was.  All 
her  claim,  both  at  law  or  in  equity,  she  assigns  to  John 
G.  Schenck,  as  her  trustee.  She  assigned  the  legacy,  and 
the  security  for  that  legacy.  Because  the  trustee  was  the 
owner  of  the  fund  which  was  the  security  for  the  debt, 
did  the  assignment  of  the  debt  and  security  to  him,  as 
trustee,  release  the  security?  Unquestionably,  if  another 
person  had  been  created  the  trustee,  the  assignment  to 
him  of  the  debt  would  not  have  released  the  lien  until  the 
debt  was  actually  paid.  If  it  can  be  shown  that  John  C. 
Schenck,  in  pursuance  of  his  trust,  did  invest  the  trust 
fund  on  bond  and  mortgage  in  good  faith  in  pursuance  of 
the  trust  deed,  then  the  land  provided  by  the  will  would 
have  ceased  to  be  a  security  on  the  legacy,  because  such 
investment  would  have  been  a  payment  of  the  legacy  to 
Margaret  Schenck,  or  to  her  trustee,  which  is  the  same 

O  *  '  \  ' 

thing.  It  is  apparent  that  the  money  was  never  raised  to 
pay  that  legacy ;  that  it  existed  in  no  other  way  than  as  a 
debt  due  to  Margaret  Schenck  from  John  C.  Schenck, 
secured  upon  his  land,  and  that  while  that  debt  and  secu- 
rity were  assigned  to  John  C.  Schenck,  as  trustee,  with 
power  to  change  the  security,  it  never  was  in  fact  changed. 
In  equity,  John  C.  Schenck  would  never  be  permitted  to 
interpose  that  trust  deed  as  a  defence  against  a  claim  of 
the  legacy  as  a  lien  upon  the  land.  The  fact,  that  this  lien 
was  subsequently  transformed  into  a  decree  in  Chancery 
by  the  consent  of  all  the  parties  to  this  deed,  was  notice 
to  any  subsequent  creditor  of  John  C.  Schenck,  as  to  the 
intention  of  the  parties  to  the  deed,  and  places  such  cred- 
itor in  a  situation  no  better  than  that  of  John  C.  Schenck 
himself,  as  to  all  the  rights  involved  in  that  instrument. 

These  were  all  the  questions  that  appear  to  have  been 
in  controversy  between  the  parties  in  the  suit  upon  which 


FEBRUARY  TERM,  1854.  33 


Terhune  v.  Colton. 


the  decree  was  founded.  They  were  considered  as  fair 
matters  of  controversy.  The  claims  of  the  mortgagees, 
and  of  the  legatees,  were  both  meritorious.  All  who  had 
any  interest  in  the  questions  involved  were  represented, 
and  the  controversy  was  compromised.  The  decree  is 
tinal  and  conclusive  between  all  the  parties  to  it,  as  well 
as  all  persons  claiming  under  them,  unless  it  is  impeached 
for  fraud,  or  can  be  shown  that  there  was  some  mistake 
which  a  court  of  equity  ought  to  rectify. 

The  next  position  taken  on  behalf  of  the  complainant 
is,  that  the  decree  has  been  satisfied.  Before  examining 
this  part  of  the  case,  however,  it  is  proper  that  I  should 
not  overlook  a  matter  of  much  controversy  between 
counsel  on  the  argument — the  validity  and  effect  of  the 
agreement  upon  which  the  decree  was  entered.  On  be- 
half of  the  complainant,  it  was  contended  that  the  decree 
must  be  enforced  according  to  the  terms  of  the  agreement. 
On  behalf  of  the  defendants,  counsel  insisted  that  the 
agreement  is  not  binding  on  their  clients,  because  their 
solicitor  had  no  authority  from  them  to  make  it,  and  be- 
cause it  was  not  within  the  scope  of  his  retainer,  as  their 
solicitor,  to  enter  into  such  an  agreement  on  their  behalf. 
I  think  the  solicitor  had  not  the  power  to  enter  into  an 
agreement,  by  which  the  lien  of  his  clients  upon  the 
mortgaged  premises  was  postponed  in  payment  to  a  sub- 
sequent encumbrance.  He  had  no  right  to  do  it  for  a  pe- 
cuniary consideration,  nor  in  consideration  that  it  pre- 
vented further  controversy  in  the  suit.  An  attorney  has 
no  right  to  give  up  the  security  of  his  client,  unless  he 
receives  actual  payment,  or  is  specially  authorized  to  do 
so.  Tankerdey  v.  Anderson,  4  Dess.  44.  The  authorities 
are  numerous  and  very  unifonn  against  the  authority  of 
an  attorney,  without  special  authority,  to  enter  into  an 
agreement  of  this  kind.  But  I  think  there  is  evidence 
enough  of  the  acquiescence  of  the  defendants  in  the 
agreement  to  infer  that  the  solicitor  had  special  authority 


34  CASES  IN  CHANCEKY. 


Terhune  v.  Colton. 


to  enter  into  it,  to  make  it  binding  on  the  defend- 
ants. The  defendants  deny  all  knowledge  of  the  agree- 
ment ;  but  many  years  have  transpired  since  it  was  made, 
and  it  may  have  escaped  their  recollection.  They  settled 
another  important  suit  under  it,  involving  a  much  larger 
amount  of  money,  and  it  is  difficult  to  conclude,  under 
all  the  circumstances,  that  in  the  subsequent  transactions 
the  agreement  was  studiously  concealed  from  them.  If  so, 
it  was  a  fraud  upon  them.  But  certainly  their  conduct 
shows,  and  particularly  their  willing  acquiescence  in 
the  wishes  of  their  uncle,  John  C.  Schenck,  that  there 
could  have  been  no  object  in  concealing  from  them  this 
agreement.  But  I  cannot  perceive  that  this  is  a  question 
of  any  moment  in  the  case.  The  defendants  do  not  seek 
to  enforce  the  decree  in  any  manner  which  is  a  violation 
of,  or  inconsistent  with  that  agreement.  The  complain- 
ants in  that  suit  have  been  paid  their  debt ;  they  have  no 
further  interest  in  the  agreement.  The  complainant  in 
this  suit  has  not,  as  I  can  see,  any  rights  which  can  be 
protected  under  it.  If  the  property  was  sold  under  the 
decree,  the  complainants  were  to  be  first  paid.  They 
have  been  paid  without  a  sale  of  the  mortgaged  premises. 
If  the  property  is  now  sold  under  the  decree,  the  com- 
plainants in  that  suit  have  no  debt  to  be  satisfied  out  of 
the  proceeds,  nor  does  the  complainant  contend  that  he  is 
to  be  subrogated  to  their  rights. 

Has  this  decree  been  satisfied  ?  If  it  has  it  must  have 
been  by  actual  payment,  or  by  the  receipt  of  some  speci- 
fic thing  given  and  received  in  satisfaction,  or  by  release. 
A  release  is  not  alleged ;  nor  is  there  any  evidence  of  the 
defendants  having  received  any  specific  thing  in  satisfac- 
tion of  their  claim.  As  to  payment,  the  bill  states  "  that. 
in  what  way  the  legacy  due  Margaret  and  William  was 
satisfied,  the  complainant,  at  this  distance  of  time,  and  in 
consequence  of  the  death  of  John  C.  Schenck,  has  not 
been  able  to  ascertain,  but  that  it  was  considered  settled 


FEBKUAKY  TEEM,  2854.  35 


Terhune  v.  Colton. 


between  the  parties,  and  that  with  that  understanding  a 
loan  was  made  on  the  encumbered  premises,  which  the 
present  mortgage  of  the  complainant  represents." 

The  testimony  of  Mr.  Green  and  of  Mr.  Field  is  that 
they  understood  that  the  decree  was  settled  by  the  par- 
ties, and  that  John  C.  Schenck  represented  it  to  be  settled. 
But  no  one  says  that  either  Colton,  or  his  wife,  or  Wil- 
liam Schenck,  was  a  party  to  that  understanding.  No  one 
says  that  either  of  them  was  present  when  any  such  un- 
derstanding was  had,  or  that  they  assented  to  it.  "Was 
there  any  one  authorized  by  them  to  bind  them  by  such 
an  understanding  ?  Mr.  Green  was  their  solicitor,  and  he 
says  he  had  no  communication  with  either  of  them  upon 
the  subject.  He  was  not  authorized  to  bind  them  in  such 
an  agreement.  Nor  could  John  C.  Schenck  bind  Colton 
and  wife,  although  he  was  Mrs.  Colton's  trustee.  Situated 
as  he  was,  the  common  debtor  of  all  the  parties  to  the  de- 
cree, for  him  to  have  executed  an  actual  release  without 
receiving  payment  or  satisfaction  would  have  been  a  fraud, 
and  such  release  would  have  been  void.  How,  then,  caii 
this  court,  upon  the  allegation  of  the  most  respectable 
witnesses  that  they  understood  the  decree  was  settled, 
and  that  such  was  the  general  understanding  of  the  par- 
ties, declare  this  decree  satisfied,  when  it  appeals  that 
these  defendants  were  not  present  at  such  an  arrange- 
ment, and  in  the  absence  of  all  proof  that  they  were  cog- 
•nizant  of  such  an  understanding  ?  But  it  is  said  that  theii 
future  conduct  showed  an  acquiescence  in  this  under- 
standing, and  that  they  had  relinquished  their  rights  under 
the  decree. 

It  is  not  pretended  that  any  memorandum  in  writing 
was  made  as  to  any  arrangement  or  understanding,  nor 
can  any  witness  tell  the  terms  of  any  arrangement,  either 
verbal  or  written,  upon  which  such  an  understanding 
was  founded.  The  declaration  of  Colton  and  wife,  that 
the  decree  was  satisfied,  would  not  bind  them.  A  debt  of 
record  cannot  be  released  by  parol.  How  far  such  a  de- 


36  CASES  IN  CHANCEKY. 


Terhune  v.  Colton. 


claration  may  bind  a  party  as  to  one  who  upon  the  faith 
of  it  has  advanced  his  money,  is  another  question. 

The  docket  of  the  sheriff  is  appealed  to  as  evidence  of 
the  settlement.  On  the  30th  of  March,  1837,  Mr.  Field, 
as  the  solicitor  of  the  complainants  in  that  suit,  gave  to 
the  sheriff  a  receipt  for  $10,203.99,  in  full  of  the  princi- 
pal and  interest  due  the  complainants.  On  the  22d  of  Sep- 
tember following,  Mr.  Green  made  the  following  entry, 
at  the  request  of  the  sheriff :  "  1837,  Sept.  22d.  Stay  fur- 
ther proceedings  on  the  above  decree,  as  respects  Asa  8 
Colton  and  Wm.  Sclienck,  till  further  orders.  Jas.  S. 
Green,  their  solicitor."  Mr.  Green  says  he  considered  the 
decree  as  settled,  and  that  is  the  reason  why  the  entry  was 
made.  But  the  receipt  itself  will  not  bear  such  a  construc- 
tion. He  does  not  say  he  was  authorized  by  his  clients  to 
enter  satisfaction.  His  general  authority,  as  solicitor,  did 
not  authorize  him  to  settle  that  execution  in  any  way,  ex- 
cept by  receiving  the  money.  The  receipt  he  gave  in- 
volved him  in  no  such  responsibility  as  a  receipt  for  the 
satisfaction  of  the  decree  would  have  imposed  upon  him. 
The  solicitor  having  no  authority  to  enter  satisfaction,  if 
the  entry  he  did  make  could  be  construed  to  have  that 
effect,  he  would  be  responsible  to  his  clients  for  the  amount 
due  them  on  the  execution.  Such  a  construction  cannot  be 
put  upon  it,  and  it  could  not  have  been  so  intended  by  the 
solicitor.  That  entry  is  evidence,  that  at  that  time  the 
execution  was  not  settled,  and  that  the  solicitor  was  not 
willing  to  give  the  sheriff  a  receipt  to  that  effect. 

There  is  another  matter  in  connection  with  the  receipts 
in  the  docket.  On  the  30th  of  March,  1837,  the  date  of 
Mr.  Field's  receipt,  the  homestead  farm  of  John  C. 
Schenck  was  sold  by  his  assignee,  under  the  general  as- 
signment made  by  Schenck,  for  the  benefit  of  his  credi- 
tors. The  sale  was  made  subject  to  this  decree  and  exe- 
cution, and  the  property  was  purchased  by  William  Gu- 
lick  for  $67.  On  the  same  day  the  mortgage  was  exe- 
cuted to  Bishop,  on  the  157  acres  of  the  homestead,  for 


FEBRUARY  TERM,  1854.  37 


Terhune  v.  Colton. 


$5969,46.  The  bill  alleges  that  the  mortgage  was  made 
cotemporaneously  with  the  settlement  of  the  execution. 
Mr.  Green,  in  connection  with  this  subject  of  the  sale, 
says,  "  The  arrangenent,  as  I  recollect,  was,  that  the  assignee 
should  sell,  and  John  Gulick  become  the  purchaser  j  that  mo- 
ney enough  should  be  raised  to  discharge  the  decree,  so  that  a 
clear  title  might  he  given  to  the  man  who  should  loan  the  mo- 
ney, and  that  idea  was  carried  out"  Was  this  done  on  that 
day?  Was  this  arrangement  carried  out'?  Was  there  mo- 
ney enough  raised,  or  borrowed,  to  discharge  that  decree  ? 
Such,  undoubtedly,  was  the  intention  of  the  parties.  And 
this  accounts  for  it,  why  it  was  that  Colton  and  William 
Schenck  were  not  there,  and  were  not  consulted  about 
the  arrangement.  If  the  settlement  had  been  completed, 
as  contemplated,  and  money  enough  raised  to  discharge 
the  decree,  their  assent  was  not  necessary.  Only  part  of 
the  arrangement  was  earned  out.  Money  enough  was 
raised  on  that  day  to  discharge  a  part  of  the  decree,  and  it 
was  discharged.  It  appears  to  me  that  this  evidence 
shows  conclusively  that  the  decree  was  not  settled  on 
thai  day ;  that  it  was  understood  it  should  be,  but  that 
the  understanding  was  not  carried  ont.  It  was  the  disap- 
pointment of  this  expectation  that  led  to  all  the  embar- 
rassments and  misunderstanding  that  followed.  John  C. 
Schenck  undoubtedly  intended  to  pay  off  the  decree,  and 
subsequently  made  every  effort  to  do  so.  If  he  did  not 
succeed,  the  defendants  are  not  to  have  their  liens  post, 
poned  to  •»,  subsequent  encumbrancer,  unless  it  can  be 
shown  that,  by  some  act  of  theirs,  he  has  been  induced  to 
loan  his  money  upon  a  false  security. 

But  for  the  complainant,  it  is  further  contended,  that  by 
the  subsequent  conduct  of  the  Coltons  and  William 
Schenck,  they  abandoned  their  rights  under  the  decree. 
It  is  asked,  why  was  this  decree  allowed  to  sleep  for  eleven 
years?  John  C.  Schenck  was  dead.  No  mere  respect,  or 
kind  feelings  for  their  uncle,  could  have  induced  the  defend- 
ants to  acquiesce  in  this  delay.  The  only  answer  given  is,  that 

VOL.  ii  D. 


33  CASES  IN  CHANCEKY. 


Terhune  v.  Colton. 


they  did  not  know  what  their  rights  were.  I  can  only  say, 
that  the  evidence  and  the  character  of  the  whole  transac- 
tion, satisfy  me  that  this  fact  should  not  prejudice  the  de- 
fendandts.  Let  us  examine  the  specific  acts  of  the  de- 
fendants relied  upon  as  evidences  of  the  abandonment  of 
the  decree. 

First ;  as  to  William  Schenck.  It  is  said  he  presented 
his  claim  to  the  assignee  of  John  C.  Schenck,  and  that 
it  was  passed  upon  by  the  court  and  rejected  by  the  court. 
The  only  evidence  respecting  this  is  an  exhibit  showing 
an  order  made  by  the  court  upon  exceptions  filed  to  the 
claims  of  certain  creditors.  The  order  declares,  "  the  claim 
of  John  C.  Schenck,  as  executor  of  Joseph  Schenck,  for 
the  legacy  of  William  Schenck  of  $4843.11 ;  the  claim  of 
Enoch  Johnson  of  $2646.23  ;  the  claim  of  Caleb  Johnson 
of  $15,583.88 :  the  claim  of  Isaac  Story,  executor  of  James 
Stoddard,  deceased,  of  $2566.32,  having  been  paid  out 
of  the  real  estate,  the  court  order  that  the  same  be  not 
allowed.  This  order  shows  that  William  Schenck  was  no 
party  to  the  proceedings ;  that  he  did  not  himself  present 
the  claim,  but  that  it  was  presented  by  John  C.  Schenck, 
as  executor.  William  Schenck,  then,  is  neither  bound  by 
the  adjudication  of  the  court  upon  his  claim,  nor  can  he 
be  prejudiced  by  the  fact,  that  his  claim  was  presented. 
But  if  he  had  presented  the  claim  himself,  that  circum- 
stance would  not  have  prejudiced  his  rights  under  the 
decree.  The  Orphans  Court  might  probably  have  turned 
him  over  to  his  lien  upon  the  land,  unless  he  would  con. 
sent  to  release  it  for  the  benefit  of  the  creditors  at  large. 

As  to  Asa  Colton  and  wife's  acts  under  the  assignment 
of  John  C.  Schenck.  In  August,  1836,  six  months  prior 
to  the  decree,  John  C.  Schenck,  as  trustee,  presented  a 
claim  to  his  assignee  for  the  amount  of  $4843.11.  This 
amount  included  the  legacy  in  question,  and  also  the  other 
legacy  given  to  Margaret  by  the  will  of  Joseph  Schenck. 
To  the  claim  presented,  John  C.  Schenck  annexed  his 
affidavit ;  and  on  the  same  paper,  Asa  Colton  and  wife 


FEBKUAKY  TEEM,  1854.  39 


Terhuce  v.  Colton. 


made  their  affidavit  that  the  sum  claimed  was  due,  as  stated 
in  the  account.  On  the  1st  of  November,  1837,  John  C. 
Schenck  received  a  dividend  on  the  claim,  as  presented, 
of  $486.73,  and  in  the  receipt  he  gave  for  it,  calls  it  "  the 
first  dividend  on  the  claim  of  Asa  S.  Colton  and  wife, 
which  I  receive  as  their  trustee.  August  31,  1841."  John 
C.  Schenck,  as  trustee,  received  from  the  assignee  $685.30, 
and  gave  a  receipt  for  it  "in  full  of  the  second  and  last 
dividend  of  said  Schenck's  estate  upon  final  settlement." 
The  receipt  of  these  dividends  did  not  operate  in  law  as 
a  release  of  the  lien  upon  the  land.  It  was  not  contended 
that  the  lien  was  at  all  affected  by  the  statute  under  which 
the  assignment  was  made.  But  it  was  said  that  these 
proceedings  show  that  the  decree  had  been  abandoned. 
Such  was  not  the  legal  effect  of  those  acts  of  the  parties. 
If  such  was  their  intention,  they  have  a  right  to  repent 
of  it,  and  no  one  can  question  that  right,  unless  he  can 
show  some  other  legal  or  equitable  discharge  of  the  debts 
than  can  be  inferred  merely  from  these  acts. 

But  the  argument  was  presented  in  a  more  forcible 
manner  as  to  the  abandonment  of  the  decree.  Admit,  it 
is  said,  that  no  one  of  these  acts  referred  to  amounts  to  a 
legal  or  equitable  discharge  of  the  decree,  it  is  proved  that 
there  was  an  understanding  that  the  decree  should  be  con- 
sidered satisfied,  and  all  these  acts  together  show  that  Asa 
Colton  and  wife  and  William  Schenck  acquiesced  in  that 
understanding.  These  acts  all  show  one  thing  most  incon- 
testably,  and  it  is  this,  that  if  any  one  ever  understood 
the  decree  was  satisfied,  no  one  understood  or  supposed 
that  the  debt  secured  by  it  was  paid  or  settled.  All  these 
acts,  which  are  now  brought  up  in  judgment  against  the 
defendants,  as  evidences  against  them,  were  nothing  more 
than  honest  efforts  on  their  part  to  secure  their  debt. 
They  are  all  consistent  with  the  fact,  that  the  debt  was 
acknowledged  due,  and  was  secured  by  that  decree. 
They  do  not  prove  that  these  defendants,  without  any  con- 
sideration, released  the  only  security  which  they  had  for 


40  CASES  IN  CHAKCERY. 


Terhune  v.  Colton. 


their  debt,  and  that,  too,  without  taking  any  evidence  that 
the  debt  itself  was  still  in  existence.  Had  this  been  a 
question  in  which  Colton  and  wife,  William,  and  John  C. 
Schenck,  only  were  interested,  I  cannot  think  a  contro- 
versy could  have  arisen  upon  the  evidence  in  this  case  as 
to  the  rights  of  the  defendants  to  enforce  the  decree.  It 
is  the  hardship  of  the  complainant's  situation  that  has  ex- 
cited a  sympathy,  which  has  given  an  importance  to  these 
various  circumstances  that  they  would  not  otherwise  have 
possessed. 

It  is  said,  however,  that  the  complainant  stands  in  a 
very  different  position  from  that  of  John  C.  Schenck. 
True,  he  does.  But  let  iis  see  whether  his  equities,  as 
against  these  defendants,  are  superior  to  those  of  John  C. 
Schenck. 

I  shall  examine  this  part  of  the  case  in  the  most  favor- 
able light  it  can  be  viewed  for  the  complainant.  I  shall 
consider  him  as  standing  in  the  place  and  stead  of  James 
Bishop,  and  entitled  to  all  the  equity  which  Bishop  could 
have  claimed  under  his  mortgage. 

On  the  30th  of  March,  1837,  the  amount  of  the  lien  on 
the  decree  first  to  be  satisfied  was  $10,203.99.  On  that 
day,  this  amount  was  paid  off,  and  on  the  same  day  James 
Bishop  advanced  to  John  Gulick,  who  had  purchased,  and 
then  held  the  equity  of  redemption  in  the  premises  em- 
braced in  the  decree,  $5969.46.  It  is  alleged  that  this 
money  was  appropriated  to  pay,  in  part,  the  first  lien  on 
the  decree.  This  was  not  proved,  but  may,  I  think,  be 
admitted  without  affecting  the  controverted  question. 
John  Gulick  gave  to  Bishop  his  bond,  to  secure  the  money 
he  had  advanced,  and  a  mortgage  upon  the  premises. 
The  bill  charges,  that  on  the  same  day  the  execution  upon 
the  decree  was  settled  between  the  parties,  and  a  new  ar- 
rangement made  between  them  ;  that  the  mortgage  from 
Gulick  to  Bishop  was  made  cotemporaneously  with  the 
settlement  of  the  execution. 

Then  the  bill  states,  "  tJie  arrangement  that  was  made,  as 


FEBRUARY  TERM,  1854.  41 


Terhune  v.  Colton. 


your  orator  is  informed  and  believes  was  this  :  the  said  James 
Bishop  was  willing  to  take  a  mortgage  upon  the  said  157  acres 
of  land  provided  it  could  be  cleared  of  all  existing  encumbran- 
ces. 1  his  could  only  be  effected  by  a  satisfaction  of  the  exe- 
cution issued  out  of  the  Court  of  Chancery,  and  then  in  the 
hands  of  the  sheriff.  With  the  money  thus  obtained  from  the 
said  James  Bishop,  together  with  other  moneys  raised  by  the 
said  John  Gulick,  the  whole  amount  of  principal  and  interest 
due  to  tJie  said  Caleb  and  Enoch  Johnson  was  paid,  together 
with  the  costs  of  the  said  suit  and  the  sheriff's  execution  fees. 
In  wJiat  way  precisely  the  legacy  of  the  said  Margaret  Colton 
and  William  Schenck,  and  the  amount  due  to  them  under  the 
execution  was  satisfied  and  arranged,  your  orator  at  this  dis- 
tance of  time,  and  in  consequence  of  the  death  of  the  said  John 
C.  Schenck,  has  not  been  able  to  ascertain.  It  was  an  arrange- 
ment, however,  to  which  the  solicitor  of  the  said  Asa  S.  Colton 
and  Margaret  his  wife  and  William  Schenck,  and  also  John 
C.  Schenck,  the  trustee  of  the  said  Margaret  Colton  were 
parties,  and  with  which  they  were  entirely  satisfied." 

It  thus  appears  that  Bishop  advanced  his  money  under 
the  belief,  and  with  the  understanding  that  the  Chancery 
execution  was  satisfied  and  arranged,  and  the  property 
free  from  encumbrances.  It  turns  out,  however,  that  the 
execution  was  not  satisfied,  and  that  although  the  parties 
supposed  it  was,  there  was  a  misunderstanding  upon  that 
subject.  The  question  is,  are  these  defendants  responsible 
for  the  misunderstanding  ?  "Was  anything  done  by  them 
to  mislead  Bishop,  and  which  makes  it  inequitable  that 
they  should  be  permitted  to  enforce  their  execution  ?  The 
bill  does  not  allege  that  the  defendants  took  any  part  in 
the  proceedings,  or  that  they,  or  either  of  them,  ever  held 
out  to  Bishop,  or  any  one  else,  that  the  execution  was 
satisfied  or  arranged.  It  charges  the  arrangement  was 
satisfactory  to  the  defendants'  solicitor.  lie  had  no  powc  > 
to  enter  into  any  arrangement  to  satisfy  the  decree,  ex- 
cept upon  a  receipt  of  the  money  due  upon  it.  He  Cv>m- 
pleted  all  the  arrangements  he  was  authorized  to  make, 

D* 


42  CASES  IN  CHANCERY. 

Terhune  v.  Cotton. 

and  that  was  not  to  enter  satisfaction,  but  to  give  a  stay 
of  the  execution.  When  Bishop  advanced  his  money, 
that  decree  was  before  his  eyes  open  and  unsatisfied ;  he 
had  actual  notice  of  it,  and  of  the  large  amount  due  upon 
it ;  he  chose  to  advance  his  money  upon  a  vague  under- 
standing that  the  execution  was  satisfied.  If  he  relied 
upon  the  mortgaged  premises  for  his  security,  he  was 
guilty  of  a  negligence  which  meets  with  no  favor  in  this 
court.  He  had  not  the  promise  even,  of  a  reliable  person, 
that  the  encumbrance  should  be  satisfied ;  and  so  vague 
was  the  understanding  upon  which  he  relied,  that  neither 
himself,  or  the  three  other  individuals  who  participated 
in  the  arrangement,  can  tell  what  the  terms  of  the  arrange- 
ment were.  The  result  of  it  was,  that  the  decree  and  exe- 
cution were  considered  satisfied.  There  is  no  principle 
of  equity  which  will  justify  the  court  in  saying  to  these 
defendants,  as  between  them  and  Bishop,  your  conduct 
was  such,  in  permitting  Bishop  to  advance  this  money, 
that  you  must  be  postponed  to  a  future  encumbrancer. 

Have  the  defendants,  since  Bishop  advanced  his  money, 
done  anything  to  prejudice  his  security,  or  the  rights  of 
any  person  claiming  under  it  ?  The  mere  delay  has  not 
prejudiced  any  right.  If  they  delayed  to  enforce  their 
rights  under  the  decree,  they  have  been  vigilant  in  their 
endeavors  to  secure  their  debt.  The  subsequent  acts  of 
the  defendants,  so  far  from  prejudicing,  have  benefited 
the  complainant.  The  substitution  of  the  bond  and  mort- 
gage of  John  C.  Schenck  for  those  of  John  Gulick  was 
an  act  for  which  the  complainant  is  alone  responsible. 

My  conclusion  is,  that  the  complainant  has  not  made 
out  a  case  to  justify  me  in  enjoining  the  defendants  from 
proceeding  to  enforce  their  execution.  There  must  be  a 
reference  to  a  master  to  take  an  account  of  the  amount 
due  the  complainant  upon  the  decree  and  execution,  after 
crediting  upon  the  same  such  payments  as  have  been 
made  thereon. 

There  are  one  or  two  observations,  which  it  appears  to 


FEBRUARY  TERM,  1854.  43 


Terhune  v.  Colton. 


me  proper  that  I  should  make,  in  reference  to  taking  the 
accounts,  in  order  that  both  parties  may  be  fully  apprized 
of  the  views  of  the  court  upon  the  whole  case. 

The  bill  alleges  that  William  Schenck's  interest  was 
satisfied  by  certain  bonds  and  mortgages,  which  were  af- 
terw%ards  paid  up,  with  the  exception  of  a  small  balance 
of  $96.24,  for  which  he  received  in  payment  a  note  of* 
John  C.  Schenck.  The  evidence  is  clear  that  the  bond 
and  mortgage  given  by  John  C.  to  William  Schenck,  of 
the  7th  of  August,  1837,  for  the  sum  of  $3283.40,  was  in 
payment  of  what  is  called  the  Slayback  legacy,  and  has 
no  connection  with  the  legacy  in  question.  This  is  proved 
by  Mr.  Green's  docket ;  and  the  correspondence  of  the 
amount  of  the  bond  and  mortgage  with  that  due  on  the 
legacy,  with  the  correspondence  of  dates,  place  this  mat- 
ter beyond  dispute.  As  to  the  appropriation  of  payments 
made  by  John  C.  to  William  Schenck,  and  of  which  no 
special  appropriation  has  been  made  between  the  parties, 
whether  they  are  to  be  applied  upon  the  decree  or  upon 
other  claims  of  William  against  John  C.  Schenck,  is  left 
an  open  question  for  the  master,  the  parties  being  at  lib- 
erty to  take  such  additional  evidence  as  they  may  see 
proper. 

In  reference  to  the  payments  to  be  allowed  on  the 
amount  decreed  in  favor  of  Asa  S.  Colton  and  wife,  there 
is  more  difficulty.  It  appears,  from  the  evidence  now  in 
the  case,  that  if  all  the  payments  made  were  credited  upon 
the  decree,  it  would  be  satisfied.  Colton  and  wife  allege 
that  they  had  another  claim  against  John  C.  Schenck  for 
the  Slayback  legacy,  and  that  the  payments  made,  or  a 
part  of  them,  have  been  appropriated  upon  that  claim. 

For  the  Slayback  legacy,  there  was  a  decree  in  favor  of 
Asa  S.  Colton  and  wife  for  $3187.82,  and  in  favor  of  Wil- 
liam Schenck  for  $3187.82.  The  prior  encumbrances 
amounted,  on  the  21st  July,  1837,  to  $8840.47.  The  pro- 
perty was  sold  under  and  by  virtue  of  the  decree,  and  the 
net  proceeds  of  sales  amounted  to  $12,889.50.  William 


44:       •  CASES  IN  CHANCEKY. 


Terhune  v    Cohon. 


Schenck's  interest  in  that  decree  was  liquidated  by  the 
bond  and  mortgage  before  referred  to.  This  left  in  the 
hands  of  the  sheriff  more  than  money  enough  to  satisfy 
the  Colton's  claim,  with  a  surplus  of  upwards  of  'five  hun- 
dred dollars  in  his  hands.  On  the  2d  of  August,  1837, 
the  sheriff  paid  to  the  solicitor  of  the  Coltons  and  William 
Schenck  $3419.75,  and  the  solicitor  gave  him  a  receipt, 
as  having  received  that  amount  in  part  of  claim  of  Asa 
S.  Colton  and  William  Schenck.  On  the  same  day  the 
sheriff  paid  to  John  C.  Schenck  $629.08,  surplus  money 
in  his  hands.  William  Schenck's  claim  being  satisfied 
by  the  bond  and  mortgage,  Colton  and  wife  were  entitled 
to  receive  the  amount  paid  to  the  solicitor,  which  was 
sufficient  to  satisfy  their  claim.  The  Slayback  legacy  was 
paid  and  extinguished,  and  Colton  and  wife  could  have  no 
further  demand  for  it  upon  any  one,  except  upon  their 
solicitor.  If  John  C.  Schenck  afterwards  became  indebted 
to  them,  they  must  show  such  indebtedness  :  if  they  can- 
not, any  payments  afterwards  made  must  be  appropriated 
to  the  payment  of  their  claim  upon  the  decree  in  question. 
I  have  not  overlooked  the  fact  that  John  C.  Schenck  af- 
terwards received  the  dividends  from  the  assignee  for 
slaims  presented  on  behalf  of  Colton  and  wife.  But 
there  is  nothing  in  the  receipts  which  John  C.  Schenck 
gave  for  the  dividends,  nor  in  any  other  exhibit,  to  show 
that  these  dividends  .were  upon  anything  except  the  home- 
stead legacy.  The  claim  filed  did,  it  is  true,  embrace  both 
legacies ;  but  that  claim  was  presented  in  1836,  a  year  be- 
fore the  Slayback  legacy  was  paid  by  the  sale  under  the 
decree.  It  is  very  certain,  if  Schenck  did  receive  a  divi- 
dend on  that  legacy,  it  was  a  fraud  upon  the  other  credi- 
tor ;  for  that  legacy  had  been  paid,  and  could  not  be  re- 
vived again  in  any  shape.  It  was  suggested  that  the 
solicitor  paid  over  the  money  he  received  to  John  C. 
Schenck.  There  is  no  evidence  of  this.  If  he  did,  it  did 
not  revive  the  debt  due  upon  that  decree.  If  he  paid  it 
with  the  consent  of  Colton  and  wife,  it  created  a  new 


FEBRUARY  TERM,  1854.  45 


Veghte  v.  Hoagland. 


debt  from  John  C.  Sehenek  to  them.  How  he  could  get 
a  dividend  on  it,  I  cannot  conceive.  This  whole  matter 
is  open  to  further  investigation  before  the  master. 

CITED  in  Grtde  v.  Van  Vale*,  10  C.  E.  Gr.  \fl ;  Blauvelt  v.  Van  Winkle  2  Slew,  110.     • 


VEGHTE  vs.  HOAGLAHD. 


To  Justify  this  court's  interfering  with  an  award,  it  must  be  shown  there  was 
frau'l,  mistake,  or  accident.  The  Accident  must  be  such  as  to  have  deprived 
the  party  of  the  benefit  of  a  bearing  or  of  some  substantial  right ;  the  fraud 
must  amount  to  corrupt  on,  partiality,  or  gross  misbehavior  in  the  arbitrators  : 
and  the  mistake,  if  in  law,  tuu&t  be  a  plain  one,  upon  some  material  point 
affecting  the  case.  If  a  matter  of  fact,  it  mart,  in  general,  be  such  as  tho 
arbitrator  himself  would  admit,  such  aa  a  miscalculation  in  an  account,  and 
the  like. 

Where  the  bill  sta'ed  "the  award  was  not  for  damages  which  in  the  opinion  of 
the  said  arbitrators  had  accrued  subsequent  to  the  said  twenty-second  day 
of  October,  in  the  year  1847,''  And  which  alone  were  suomitted  to  them  to 
be  arbitrated,  the  testimony  of  the  arbitrators  themselves  was  held  to  be 
conducive  upon  it. 

A  complainant  cannot  invoke  the  aid  of  a  court  of  equity  on  the  ground  that 
an  award  was  illegal,  because  not  in  pursuance  of  the  submission.  When 
it  appears,  by  the  bill  itself,  that  the  parties  mutually  agreed  to  the  course 
pursued  by  the  arbitrators  in  the  matter  complained  of,  it  would  be  against 
equity  nnd  good  conscience  to  permit  the  complainant  thus  to  repudiate  hi* 
own  act*. 


Tliis  was  a  bill  filed  to  stay  the  collection  of  a  judgment 
on  an  award,  and  to  set  aside  the  award. 

By  an  article  of  agreement  under  seal,  dated  July  23d> 
1838,  it  was  covenanted,  between  II.  V.  Hoagland,  the 
plaintiff,  and  A.  Vcghtc,  the  defendant,  that  Veghte,  who 
was  about  to  construct  a  mill,  and  to  erect  a  mill  dam, 
the  dam  to  be  partly  on  the  land  of  Mr.  Hoagland,  sprne 
of  which  would  bo  in  consequence  covered  with  water, 
should  have  permission  to  enter  upon  the  land  for  that 
purpose ;  that  Veghte  would  pay  all  the  damages  which 
should  result  from  the  exercise  of  the  license  and  author- 
ity so  given,  to  be  appraised  by  two  disinterested  persons 


46  CASES  IK  CHANCERY. 

Veghte  v.  Hoagland 

chosen  by  the  parties,  and  in  case  of  their  disagreement, 
by  an  umpire  chosen  by  the  arbitrators,  whose  award,  or 
that  of  any  two  of  them,  should  be  final  and  conclusive 
between  the  parties.  Two  successive  appraisements  were 
made  under  this  agreement,  by  arbitrators  chosen  by  the 
parties,  the  first  dated  13th  of  October,  1845,  the  second  dated 
22d  October,  1847,  by  which  the  further  sum  of  $55.50 
was  also  awarded  for  damages  sustained  by  the  mainte- 
nance of  the  dam  subsequent  to  the  first  award.  These 
Bums  were  paid  accordingly. 

Hoagland,  supposing  he  had  sustained  additional  injury 
subsequent  to  the  second  award,  the  parties  again  chose 
arbitrators.  The  two  arbitrators  having  called  in  an  um- 
pire, and  the  three  so  chosen  united  in  an  award,  dated 
November  2,  1849,  by  which  they  awarded  the  further  sum 
of  $77.88  to  be  paid  by  Yeghte  to  Hoagland. 

This  award  specified  that  part  of  the  said  sum  of  $77.- 
88  was  assessed  by  them  on  lands  which  former  arbitrators 
had  valued  in  their  assessment  and  award  at  $60  per  acre, 
we,  the  present  arbitrators,  considering  and  estimating 
the  difference  between  the  interest  of  said  moneys,  so  as- 
sessed and  awarded  as  aforesaid,  and  the  value  of  the 
crops  which  said  lands  would  have  produced  to  the  said 
Hoagland,  if  'not  so  damaged,  to  be  $15.88  ;  and  for  all 
other  damages,  we  do  assess  the  sum  of  $62.50. 

On  this  award,  Hoagland  brought  an  action  of  debt 
before  a  justice  of  the  peace,  and  received  judgment  for  the 
full  amount  of  the  award. 

An  appeal  was  taken  to  the  Court  of  Common  Pleas, 
who  struck  out  the  said  sum  of  $15.88. 

Hoagland  took  the  matter  np  to  the  Supreme  Court  by 
certiorari  (see  3  Zdb.  92),  which  court  affirmed  the  judg- 
ment of  the  Common  Pleas. 

The  complainant  then  exhibited  this  bill,  praying  that 
the  said  award  be  set  aside,  and  the  defendant  enjoined 
from  enforcing  his  judgment  at  law. 


FEBRUARY  TERM,  1854. 


Veghte  v.  Hoagland. 


The  injunction  was  granted.  The  cause  now  came  up 
for  final  hearing  upon  pleadings  and  proofs. 

G.  H.  JSrovm,  for  complainant. 
R.  S.  field,  for  defendant. 

THE  CHANCELLOR.  One  complaint  made  against  the 
award  is,  that  it  purports  to  be  in  pursuance  of  a  sub- 
mission, wliich,  upon  a  legal  construction,  contemplates 
only  one  award  upon  the  matters  submitted,  "  and  that  to 
be  final  and  conclusive  between  the  parties."  It  is  insisted 
that  the  award  is  therefore  illegal,  because  it  is  not  in 
pursuance  of  the  submission,  and  ought  not  to  be  enforced. 

Waiving  the  consideration  whether  this  is  not  a  legal 
question,  which  ought  to  have  been  determined  by  the 
legal  tribunal,  when  this  award  and  the  parties  were  there, 
how  can  the  complainant  invoke  the  aid  of  a  court  of 
equity  on  this  ground,  when  it  appears,  by  the  bill  itself, 
that  when  the  first  arbitrators  met,  the  parties  mutually 
agreed  that  the  arbitrators  should  make  an  assessment  of 
the  damages  in  question  only  from  the  time  of  the  erec- 
tion of  the  mill  dam  to  the  date  of  the  report  ?  When, 
subsequently,  the  parties  selected  other  arbitrators,  who 
awarded  damages  arising  after  the  date  of  the  first  report, 
and  then  selected  a  third  set  of  arbitrators,  for  the  pur- 
pose of  assessing  the  damages  and  making  an  award,  who 
the  complainant  now  says  had  no  legal  authority  to  make 
any  award  at  all,  it  would  be  against  equity  and  good 
conscience  to  permit  the  complainant  thus  to  repudiate 
his  own  acts.  He  agreed,  by  his  solemn  acts,  to  be  bound 
by  the  award.  The  parties  mutually  agreed  to  this  mode 
of  settling  their  disputes.  They  have  given  their  own 
construction,  thus  far,  to  the  written  agreement  thus  en- 
tered into  ;  and,  as  far  as  proceedings  have  been  had  by 
their  mutual  consent,  that  consent  will  bind  them,  at 
al]  events,  in  this  court.  The  bill  states  that  Hoagland 


48  CASES  IN  CHANCEKY. 

Veghte  v.  Hoagland. 

alleged,  that  since  the  date  of  the  second  award,  he  had 
sustained  damages  by  reason  of  the  erection  of  the  mill 
dam ;  and  that,  in  order  to  give  full  satisfaction,  the  com- 
plainant agreed  to  the  selection  of  arbitrators,  and  to  sub- 
mit to  them  the  question  of  damages  subsequent  to  the 
date  of  the  second  award.  In  pursuance  of  this  agree- 
ment, the  award  now  complained  of  was  made. 

What  are  the  objections  to  the  award  ?  The  bill  shows, 
and  about  this  there  is  no  dispute  that  the  arbitrators 
were  selected  to  estimate  and  assess  the  damages  and  loss 
sustained  by  Henry  V.  Hoagland,  by  reason  of  the  erec- 
tion of  the  mill  dam,  from  the  22d  day  of  October,  1847, 
(the  date  of  the  second  award)  until  the  22d  day  of  No- 
vember, 1849.  There  is  only  one  specific  ground  of  com- 
plaint stated  in  the  bill.  It  is,  that  the  amount  awarded 
was  not  for  damages  which,  in  the  opinion  of  the  said  ar- 
bitrators, had  accrued  subsequent  to  the  said  22d  day  of 
October,  1847,  but  that  they  took  into  consideration,  and 
made  their  award  of  damages  principally  upon  matters 
which  had  been  submitted  to  the  former  arbitrators,!  and 
for  which  full  damages  had  been  awarded  and  paid.  There 
is  no  othei*  ground  of  complaint  stated.  The  complainant 
must  maintain  this  issue,  or  he  cannot  be  relieved. 

To  justify  this  court  interfering  with  an  award,  it  must 
be  shown  there  was  fraud,  mistake  or  accident.  The  ac- 
cident must  be  such  as  to  have  deprived  the  party  of  the 
benefit  of  a  hearing  or  of  some  substantial  right ;  the 
fraud  must  amount  to  corruption,  partiality,  or  gross  mis- 
behavior in  the  arbitrators ;  and  the  mistake,  if  in  law, 
must  be  a  plain  one  upon  some  material  point  affecting 
the  case;  if  a  mistake  of  fact,  it  must,  in- general,  be  such 
as  the  arbitrator  himself  would  admit,  such  as  a  miscalcu- 
lation in  an  account,  and  the  like.  2  Stores  Eq.  J.  1451; 
Adm?r  of  Sohenck  v.  Cwttrell,  1  G.  C.  JR.  301. 

In  this  case,  there  is  no  accident  alleged  which  inter- 
fered with  the  complainant's  rights,  or  has  been  the  occa- 
sion of  injustice.  The  arbitrators  committed  no  mistake, 


FEBRUARY  TEEM,  1854.  49 


Veghte  v.  Hoagland. 


as  to  the  law.  They  did  not  assume  that,  by  law,  they 
had  a  right  to  go  beyond  the  date  of  the  second  award. 
And  yet  it  is  alleged  that  they  did  go  beyond  that  date ; 
and  it  is  upon  this  ground  that  the  interference  of  the 
court  is  invoked.  If  this  is  so,  then  the  arbitrators  made 
a  mistake,  and  they  unintentionally  included  damages 
they  did  not  intend.  From  the  very  nature  of  the  mistake 
alleged,  it  must  be  one  unintentional  on  the  part  of  the 
arbitrators,  one  which  can  be  readily  pointed  out  to  them, 
and  made  plain  and  palpable.  The  bill  states  the  mis- 
take to  be  a  plain  one.  In  the  language  of  the  bill,  "  the 
award  was  not  for  damages  which  in  the  opinion  of  the 
said  arbitrators  had  accrued  subsequent  to  the  said  twenty- 
second  day  of  October,  in  the  year  eighteen  hundred  and 
forty-seven,  and  which  alone  were  submitted  to  them  to 
be  arbitrated."  This,  then,  is  the  only  issue  made  by  the 
bill,  whether  in  the  opinion  of  the  arbitrators,  the  dam- 
ages they  awarded  were  not  subsequent  to  the  date  of  the 
second  award  ?  From  the  very  nature  of  the  issue,  the 
testimony  of  the  arbitrators  themselves  must  be  conclusive 
upon  it. 

William  A.  Voorhees,  one  of  them,  says  he  does  noi 
think  they  went  behind  the  prior  awards  in  making  any 
allowance  of  damages.  Ralph  Voorhees,  another  one, 
says,  "  I  do  not  remember  that  we  allowed  damages  for 
anything  prior  or  beyond  the  two  years.  I  am  not  certain 
that  we  did  not."  Joseph  Thompson,  the  other  arbitrator, 
says,  "  I  am  satisfied  that  we  did  not,  and  did  not  intend  to 
allow  for  any  damages  prior  to  the  last  award.  We  did 
not  allow  for  any  items  of  annual  damage  which  had  been 
allowed,  except  what  is  embraced  in  the  first  item."  He 
further  says  they  had  both  prior  awards  before  them,  and 
did  not  "  intend  to  assess  any  damages  where  they  under- 
stood permanent  damages  had  been  assessed.  The  arbi- 
trators were  examined  with  great  minuteness  as  to  the 
several  items  which  made  up  their  award.  It  is  very  clear 
that,  in  their  opinion,  they  did  not  make  any  mistake. 

VOL.  n.  E 


50  CASES  IN  CHANCEKY. 

Yeghte  v.  Uoagland. 

They  are  unwilling,  after  a  thorough  examination,  to  ad 
mit  that  any  mistake  was  made.  Is  there  a  mistake  shown, 
so  clear,  so  self-evident,  that  it  is  apparent  they  wilfully 
persist  in  refusing  to  acknowledge  what  any  candid,  sensi- 
ble man  ought  to  admit  ?  There  was  considerable  evidence 
taken  upon  the  point,  and  there  possibly  is  room  for  a 
Difference  of  opinion  as  to  whether  some  of  the  items  of 
damage  embraced  in  the  last,  may  not  have  been  included 
in  one  of  the  prior  awards.  But  whether  these  damages 
did  accrue  prior  to  the  date  of  the  second  award,  was  a 
matter  which,  by  the  parties,  was  submitted  to  the  judg- 
ment of  these  three  men,  and  with  that  judgment  this  court 
has  no  right  to  interfere. 

It  was  insisted,  by  the  complainant's  counsel,  that  it 
was  apparent,  from  the  evidence,  that  some  of  the  items 
of  damages  allowed  were  not  proper  subject  matters  of 
damages.  But  this  is  not  an  issue  made  by  the  pleadings. 
If  it  were,  I  could  not  interfere.  What  were,  and  what 
were  not,  proper  matters  to  be  adjudicated  upon  as  dam- 
ages, were  submitted  to  the  discretion  of  the  arbitrators. 
An  error  in  judgment  on  the  merits  is  no  ground  why  this 
court  should  interfere  with  the  award. 

It  was  said  by  counsel  that  this  was  an  important  cause 
for  the  complainant,  because  it  involved  the  question, 
whether  the  articles  of  submission  between  the  parties  did 
not,  in  terms,  embrace  both  the  prospective,  as  well  as 
actual  damages  occasioned  to  the  defendant  by  the  erection 
of  the  mill  dam.  But  I  am  not  called  upon  to  decide  that 
question.  If  the  defendant  should  demand  further  dam- 
ages, and  the  complainant  should  see  proper  to  join  the 
defendant  in  selecting  men  to  determine  upon  his  demands, 
the  complainant  must  submit  to  their  determination. 
Should  he  refuse  to  arbitrate,  then  the  defendant  must  re- 
sort to  some  other  tribunal,  who  will  determine  as  to  the 
effect  and  the  extent  of  the  submission  and  award  hereto- 
fore made  between  the  parties. 

The  award  must  stand,  and  the  bill  be  dismissed  with 
costs. 


FEBKUAKT  TEEM,  1854.  51 


Norris  v.  Clark. 


JOHN  D.  NORRIS,  sole  executor  of  Noah  Clark,  deceased, 
vs.  ELIZABETH  M.  CLARK  and  others. 

Dower  is  a  legal  right,  which  is  favored  both  in  law  and  equity.  To  debar 
the  widow  of  this  right,  and  put  her  to  an  election  between  her  dower  and 
a  bequest  in  the  will,  there  must  be  some  express  declaration  of  the  testa- 
tor excluding  her  from  her  right,  or  it  must  be  clear,  by  implication,  that 
such  was  his  intention. 

In  this  case  the  words  were,  "  I  give,  devise,  and  bequeath  to  my  beloved 
wife,  Elizabeth  M.  Clark,  six  hundred  dollars,  at  the  end  of  six  months 
after  my  decease,  and  my  gold  watch,  which  she  carries,  and  the  silver 
teaspoons,  the  two  sets  of  window  blinds  in  the  back  room,  and  the  hal 
lamp,  which  she  brought  me  at  or  after  our  marriage  ;  and  her  acceptance 
of  the  above  gift  shall  for  ever  exclude  her  from  any  further  demands  on 
my  estate."  It  was  insisted  that  the  acceptance  of  the  gift  excluded  the 
widow  from  any  further  demand,  only  against  the  personal  estate  ;  that 
the  legacy  was  to  be  paid  her  by  the  executor,  and  that  against  that  estate 
out  of  which  the  legacy  was  to  be  paid  she  was  excluded  from  any  further 
demands.  It  was  held,  that  if  the  other  parts  of  the  will  gave  no  further 
indication  of  the  testator's  intention,  this  construction  might  prevail  But 
as  the  testator  had  put  both  real  and  personal  estate  in  the  hands  of  the 
executor  for  disposition,  and  disposed  of  his  whole  estate,  real  and  per- 
sonal, through  the  executor,  the  person  to  pay  the  widow  the  legacy,  and 
the  disposition  was  inconsistent  with  the  widow's  enjoyment  of  her  legal 
right,  it  was  the  clear  and  manifest  implication,  from  the  whole  will,  that 
the  testator  did  intend  the  gift  to  be  in  lieu  of  dower,  and  did  not  by  the 
use  of  the  word  "estate "  mean  personal  estate  only. 


The  bill  was  filed  to  compel  Elizabeth  M.  Clark,  the 
widow  of  Noah  Clark,  the  complainant's  testator,  to  elect 
between  her  dower  and  a  legacy  in  the  will. 

Elizabeth  M.  Clark,  by  her  answer,  insists  that  she  is 
entitled  to  the  legacy  as  well  as  her  dower. 

The  will  is  as  follows : 

"In  the  name  of  God,  amen.  I,  Noah  Clark,  of  the 
township  of  Springfield,  in  the  county  of  Essex,  and  state 
of  New  Jersey,  being  in  good  health,  sound  mind,  and 
disposing  memory,  for  which  I  thank  God,  who  has  so 
favored  me,  and  duly  considering  the  mortality  of  my 
body,  and  knowing  that  it  is  appointed  for  man  once  to 


52  CASES  IN  CHANCEKY. 


N orris  v.  Clark. 


die,  and  the  time  when  very  uncertain,  do  make  and  pub- 
lish this  my  last  will  and  testament. 

First,  of  all.  I  give  and  recommend  my  soul  into  the 
hands  of  God,  who  gave  it ;  my  body  I  commit  to  the 
earth,  to  be  buried  in  a  christianlike  and  decent  manner, 
at  the  discretion  of  my  executor,  and  as  touching  such 
worldly  estate  wherewith  it  hath  pleased  God  to  bless  me 
with  in  this  life,  I  give  and  dispose  of  in  the  following 
manner. 

Second.  I  direct  that  all  my  just  debts  and  funeral 
charges  be  paid. 

Third.  I  give,  devise,  and  bequeath  to  my  beloved  wife, 
Elibabeth  M.  Clark,  six  hundred  dollars,  at  the  end  of  six 
months  after  my  decease,  and  my  gold  watch,  which  she 
carries,  and  the  silver  teaspoons,  the  two  sets  of  window 
blinds  in  the  back  room,  and  the  hall  lamp,  which  she 
brought  me  at  or  after  our  marriage ;  and  her  acceptance 
of  the  above  gift  shall  for  ever  exclude  her  from  any  fur- 
ther demands  on  my  estate. 

Fourth.  I  give,  devise,  and  bequeath  to  my  eldest 
daughter,  Mary  P.  Smith,  the  interest  or  dividend  of 
twenty  shares  of  my  bank  stock  in  Elizabeth  State  Bank, 
whom  I  hereby  authorize  to  receive  and  receipt  for  the 
same,  and  no  other  person. 

Fifth.  And  at  Mary  P.  Smith's  decease,  I  give  and  be- 
queath the  interest  or  dividend  of  the  above  named  twenty 
shares  of  bank  stock  to  be  equally  divided  between  Eliza- 
beth Stephens  and  Benjamin  C.  Crane,  to  be  receipted  for 
with  their  own  hands,  and  no  other  person. 

Sixth.  I  give,  devise,  and  bequeath  to  my  grand  daugh- 
ter, Abigail  O.  Crane,  the  interest  or  dividend  of  seven- 
teen shares  of  bank  stock  in  the  above  said  bank,  to  be 
receipted  for  with  her  own  hand,  and  no  other  person  ; 
and  if  either  Elizabeth  C.  Stephens,  Abigail  O.  Crane, 
or  Benjamin  C.  Crane  should  die  not  leaving  a  lawful 
heir,  in  that  case  their  interest  and  benefit  in  my  estate 
shall  descend  to  the  survivors  or  survivor  of  the  longest 


FEBRUARY  TEEM,  1854.  53 


Norris  v.  Clark. 


liver.  And  at  the  death  of  my  three  grandchildren,  Eliza- 
beth C.  Stevens,  Abigail  O.  Crane,  and  Benjamin  C. 
Crane,  I  give,  devise  and  bequeath  the  twenty  shares  of 
bank  stock  last  mentioned  to  be  equally  divided  amongst 
the  lawful  heirs,  the  children  of  the  three  that  is  then 
living  at  the  decease  of  the  last  of  the  three  ;  and  if  these 
should  leave  no  lawful  heirs,  then  and  in  that  case  I  order 
that  the  twenty  shares  be  divided  as  the  surplus  according  to 
the  last  section  of  this  my  will. 

Seventh.  I  give,  devise  and  bequeath  two  thousand 
lollars  to  my  daughter,  Elizabeth  S.  Morris. 

Eighth.  I  give,  devise  and  bequeath  to  my  daughter, 
Permelia  C.  Hedges,  two  thousand  dollars. 

Ninth.  I  give,  devise,  and  bequeath  to  my  grand 
daughter,  Mary  Permelia  Clark,  of  St.  Francisville,  if 
she  should  arrive  at  the  age  of  eighteen  years,  five  hun- 
dred dollars. 

Tenth.  I  give,  devise,  and  bequeath  to  the  Bible  So- 
ciety of  New  York  one  thousand  dollars  on  the  follow- 
ing condition :  that  the  directors  thereof  shall  furnish 
the  whole  value  of  that  sum  in  Bibles,  and  by  and  under 
the  direction  of  said  society,  the  Bibles  shall  be  sent,  at 
their  discretion,  to  any  place  or  country  where  they  shall 
not  and  afford  the  highest  price ;  the  amount  and  pro- 
ceeds shall  be  returned,  and  remitted  to  the  society  again, 
which  society  shall  again  furnish  its  value  in  Bibles,  and 
again  send  them  to  the  best  market,  and  so  continue  to 
furnish  the  worth  of  the  proceeds  until  the  world  is  fur- 
nished with  Bibles,  or  until  the  whole  sum  is  lost  in  defi- 
ciencies ;  and  said  society  shall  be  under  obligations  to 
report  once  a  year  the  number  of  Bibles  furnished  and 
sold,  and  the  state  of  the  fund  at  the  end  of  each  year, 
through  the  Missionary  Herald  at  their  own  yearly  report, 
a  copy  of  which  shall  be  sent  my  executor. 

Eleventh.  I  order  and  direct  the  remainder  of  my  ob- 
ligations, my  house  and  lands,  to  be  converted,  with  the 
aioveables,  into  money,  and  divided  amongst  my  heirs,  as 
E* 


54  CASES  IN  CHANCEKY. 


Norris  v.  Clark. 


follows :  one-third  part  to  be  put  out  at  interest,  secured 
by  bond  and  mortgage,  the  interest  of  which  shall  be  paid 
to  Abigail  O.  Crane  and  Elizabeth  C.  Stephens,  during 
their  lives ;  and  if  either  should  have  lawful  children, 
they  shall  receive  the  principal,  with  the  uncollected  in- 
terest that  may  remain;  and  one-third  part  to  Permelia 
C.  Hedges,  and  one-third  part  to  John  D.  Norris,  for  his 
services  in  settling  my  estate. 

Twelfth.  I  constitute  and  appoint  John  D.  Morris  my 
sole  executor,  whom  I  authorise  to  execute  my  will,  and 
do  all  things  pertaining  to  my  estate. — In  witness  where- 
of, I  have  hereunto  set  my  hand  and  seal,  January  fifth, 
one  thousand  eight  hundred  and  forty-nine." 

A.  C.  M.  Pennington,  for  complainant. 
W.  K.  McDonald,  for  defendant. 

THE  CHANCELLOR.  The  question  is,  was  the  legacy  to 
the  wife  in  lieu  of  dower  ? 

It  is  true  dower  is  a  legal  right,  which  is  favored  both 
in  law  and  equity.  To  debar  the  widow  of  this  right,  and 
put  her  to  an  election  between  her  dower  and  a  bequest 
in  the  will,  there  must  be  some  express  declaration  of  the 
testator  excluding  her  from  her  right,  or  it  must  be  clear, 
by  implication,  that  such  was  his  intention.  The  authori- 
ties will  be 'found  in  2  Williams  on  Ex.  889,  and  the  notes, 
and  in  1  Hop.  Husb.  and  wife  57T ;  2  Rop.  Leg.  530.  See, 
also,  Stark  et  al.  v.  Henton  et  al.,  Saxton  224.  The  rule,  as 
laid  down  by  Lord  Redesdale  in  Birmingham  v.  I&rwan, 
2  Selio  (&  Lefr.  452,  has  been  always  recognized :  "  It  is  to 
to  be  collected  from  all  the  cases,  that  as  a  right  to  dower  is 
in  itself  a  clear  legal  right,  an  intent  to  exclude  that  right 
by  voluntary  gift  must  be  demonstrated,  either  by  express 
words  or  by  clear  and  manifest  implication.  If  there  be 
anything  ambiguous  or  doubtful,  if  the  court  cannot  say 
it  was  clearly  the  intention  to  exclude,  then  the  averment 


FEBKUAKY  TEEM,  1854.  55 


Norris  v.  Clark. 


that  the  gift  was  made  in  lieu  of  dower,  cannot  be  sup- 
ported; and  to  make  a  case  of  election  that  is  necessary, 
for  9  gift  is  to  be  taken  as  pure  until  a  condition  appear. 
Thi.«  I  take  to  be  the  ground  of  all  the  decisions." 

T!ie  principle  upon  which  the  court  will  act  is  well 
set^ed.  The  difficulty  is  in  its  application,  and  has  given 
rise  to  conflicting  decisions. 

In  this  case  the  devise  is,  "  I  give,  devise,  and  bequeath 
to  my  beloved  wife,  Elizabeth  M.  Clark,  six  hundred  dol- 
lars, at  the  end  of  six  months  after  my  decease,  and  my 
gold  watch,  which  she  carries,  and  the  silver  teaspoons, 
the  two  sets  of  window  blinds  in  the  back  room,  and  the 
hall  lamp  which  she  brought  me,  at  or  after  our  mar- 
riage ;  and  her  acceptance  of  the  above  gift  shall  for  ever 
exclude  her  from  any  further  demands  on  my  estate." 

It  is  insisted  that  this  does  not  amount  to  an  express 
declaration  excluding  the  right  of  dower,  and  that  the 
acceptance  of  the  gift  excludes  the  widow  from  any  fur- 
ther demand  only  against  the  personal  estate ;  that  the 
legacy  is  to  be  paid  her  by  the  executor,  and  that  against 
that  estate,  out  of  which  the  legacy  is  to  to  paid,  she  is 
excluded  from  any  further  demands.  If  the  other  parts 
of  the  will  gave  no  further  indication  of  the  testator's  in- 
tention, this  construction  might  prevail.  Although  in  the 
case  of  Boynton  v.  Boynton,  1  Brown? 8  Rep.  447,  where 
the  testator  had  given  to  his  widow,  in  the  event  of  her  mar- 
rying again,  one  hundred  pounds  a  year,  as  the  full  be- 
nefit she  was  to  derive  from  his  estate,  the  Lord  Chan- 
cellor said,  "By  these  expressions,  I  rather  think  he  in- 
tended his  estate  should  be  quite  clear  of  her,"  and  he  so 
decreed.  And  also  in  Warburton  v.  Warburton,  23  E.  C.  L. 
R.  416.  But  see  Parker  v.  Sowerly,  27  E.  C.  L.  R.  154. 
But  I  think  it  appears,  by  clear  and  manifest  implication 
from  the  whole  will,  that  the  testator  did  intend  the  gift 
to  be  in  lieu  of  dower,  and  did  not,  by  the  use  of  the  word 
"  estate,"  mean  personal  estate  only. 

In  the  first  place,  he  puts  his  whole   estate,   botli   real 


56  CASES  IN  CHANCEKY. 


Norr  s  v.  Clark. 


and  personal,  in  the  hands  of  his  executor  for  disposi 
tion;  and  the  whole  will  shows  that,  by  the  use  of  the 
word  estate,  he  means  both  real  and  personal  estate. 
There  can  be  nothing,  then,  in  the  idea  that  the  executor 
has  control  only  of  the  fund  out  of  which  the  legacy  is 
to  be  paid,  and  that  the  estate  in  the  hands  of  the  execu- 
tor should  be  regarded  as  different  and  distinct  from  that 
out  of  which  the  widow  has  her  dower. 

In  the  next  place,  the  testator  disposes  of  his  whole  es- 
tate, real  and  personal.  He  disposes  of  it  through  the  ex- 
ecutor, the  person  to  pay  the  widow  the  legacy ;  and  the 
disposition  is  inconsistent  with  the  widow's  enjoyment 
of  her  legal  right.  The  testator  directs  his  house  and 
lands,  which  it  is  admitted  is  all  the  real  estate  of  which 
he  died  seized,  to  be  converted  into  money,  and  the  mo- 
ney divided  as  therein  directed. 

To  allow  the  claim  of  dower  would  disappoint  the 
will.  The  disposition  of  the  testator's  property  is  such  as 
to  leave  no  fund  for  her  claim  of  both.  Vallareal  v.  Lord 
Galway,  Ambler  683.  I  think  it  is  clear  that  the  testator 
intended  his  executor  should  sell  only  his  real  estate  free 
from  encumbrance.  If  such  was  his  intention,  he  intended 
that  the  gift  to  his  wife  should  bar  her  of  her  dower.  In 
the  case  of  Herbert  and  others  v.  Wren  and  ot/iers,  7  Cranch 
379,  Marshall,  C.  J.,  says,  "  The  clause,  too,  directing  the 
residue  of  his  estate  to  be  sold  for  the  payment  of  debts, 
is  indicative  of  an  expectation  that  the  property  stood 
discharged  of  dower,  and  is  a  complete  disposition  of  his 
whole  estate.  The  testator  appears  to  have  considered 
himself  as  at  liberty  to  arrange  his  property  without  any 
regard  to  the  encumbrance  of  dower."  But  in  the  case  of 
Gibson  v.  Gibson,  17  E.  L.  &  E.  E.  352,  the  Yice  Chan 
eellor  did  not  give  much  weight  to  a  like  clause  in  the 
will,  as  a  question  of  the  widow's  right  to  her  dower. 

If  it  is  proper  to  consider  the  relative  value  between 
the  legacy  and  the  dower,  there  is  nothing  in  it  repugnant 
to  this  construction.  The  legacy  is  about  the  value  of  the 


FEBKUAKY  TEEM,  1854.  57 

Lutheran  Church  v.  Maschop. 

dower,  as  would  appear  from  the  pleadings.  I  think  there 
is  something,  too,  in  the  fact  that  the  widow  has  no 
other  demand  against  the  estate  than  her  right  of  dower. 
This  is  admitted  by  the  answer..  As  the  legacy  was  for 
ever  to  exclude  her  from  any  further  demand  on  the  es- 
tate, what  demand  did  the  testator  refer  to,  if  not  the  de- 
mand of  dower? 

The  widow  must  make  her  election. 

CITED  in  Freeland  v.  Mandeville,  1  Stew.  563,  5C4. 


THE  GERMAN  EVANGELICAL  LUTHERAN  CHURCH  AND  CON- 
GREGATION OF    THE    CITY  OF    NEWARK,   CONNECTED    WITH 

THE  EVANGELICAL  LUTHERAN  MmisTERruM  OF  THE  STATE 
OF  NEW  YORK  AND  ADJACENT  PARTS,  AND  JOHN  FREDER- 
ICK Pi  EL  and  others  vs.  GEORGE  FREDERICK  MASCHOP 
and  others. 

This  court  his  no  rifrht  to  institute  an  inquiry  into  the  doctrines  or  mode  o 
worship  of  any  religious  society,  except  such  inquiry  shall  become  absolutely 
necess  >ry  for  the  protection  of  trust  property. 

Nor  wou'd  it  be  justified  in  issuing  an  injunction  to  enjoin  a  clergyman,  who 
without  any  pretence  of  right,  should  take  upon  himself  to  trespass  upon  a  con- 
gre_rati  >n,  by  entering  their  pulpit,  and  promulgating  bis  peculiar  religious 
doctrlnsn. 

The  court  has  no  authority  to  enjoin  a  mere  trespasser  without  shadow  o 
right. 

The  court  cannot  grant  an  injunction  to  allay  the  fears  and  apprehensions  of  indi- 
viduals. TYey  must  show  the  court  that  the  acts  airainit  which  they  ask  pro- 
tection are  not  only  threatened  but  will,  in  probability,  be  committed  to  their 
injury. 


THE  CHANCELLOR.  The  above  corporation  was  organ- 
ized under  the  general  act  entitled,  "  An  ast  to  incorpo- 
rate trustees  of  religious  societies."  After  thoir  organi- 
zation, Samuel  II.  Conger  and  wife  conveyed  to  them  a 
lot  of  land  in  the  city  of  Newark,  upon  which  they  erected 
a  house  of  worship.  The  deed  of  conveyance  was  upon 
the  following  trust :  "  to  have  and  to  hold  the  said  pro- 


58  CASES  IN  CHANCEKY. 

Lutheran  Church  v.  Masohop. 

perty  as  an  Evangelical  Lutheran  Church  for  ever,  in 
which  the  doctrine  of  the  Augsburg  Confession  and  Lu- 
ther's Smaller  Catechism  shall  be  taught  and  adhered  to ; 
and  provided,  that  if  flecessary,  the  privilege  of  preach- 
ing in  the  English  language,  besides  the  German,  shall 
be  granted  to  the  rising  generation,  until  such  a  time  that 
a  separate  church  can  be  provided  for  an  English  con- 
gregation, so,  however,  that  the  Germans  shall  always 
have  the  right  to  select  their  time  for  worship ;  and  pro- 
vided, further,  that  the  said  party  of  the  second  part  shall 
not,  by  deed,  mortgage,  or  by  any  other  ways  or  means, 
alienate,  dispose  of,  or  otherwise  charge  or  encumber  said 
property,  excepting  the  mortgage  now  given  to  Samuel 
H.  Conger  to  secure  part  of  the  purchase  money  of  said 
premises.  And  provided  further,  that  in  case  these  condi- 
tions be  violated,  then  any  one  or  more  regular  members 
shall  have  the  right  of  applying  to  the  Evangelical  Lu- 
theran Ministerium  of  the  State  of  New  York  and  adja- 
cent parts  with  which  the  congregation  is  connected,  to 
take  possession  of,  hold,  and  keep  said  property  in  trust 
for  carrying  out  the  above  named  purposes ;  and  in  case 
said  conditions  be  violated,  and  no  appeal  made  to  the 
said  Evangelical  Lutheran  Ministerium  of  the  State  of 
New  York  and  adjacent  parts,  then  the  officers  of  said 
ministerium  shall  constitute  a  board  of  trustees,  with  full 
powers  to  secure  said  property  for  the  above  named  pur- 
poses." 

At  the  time  of  the  organization  of  the  society  they 
adopted  a  constitution,  or  rules  and  regulations,  for  the 
congregation.  By  this  constitution  the  seniors  and  war- 
dens, seven  in  number,  are  the  trustees,  and,  as  such, 
have  the  control  of  the  property  of  the  church.  The  pas- 
'tor  of  the  church  must  be  a  regular  clergyman  connected 
with  some  evangelical  Lutheran  synod  in  the  United 
States  of  America:  his  salary  is  fixed  by  mutual  agree- 
ment, and  he  is  elected  to  his  office  for  such  a  term  as  he 
and  the  congregation  may  mutually  agree  upon.  In  case 


FEBRUARY  TERM,  1854.  59 


Lutheran  Church  v.  Muschop. 


he  is  accused  of  immoral  conduct,  the  seniors  and  the 
wardens  shall  examine  the  accusation,  and  if  it  prove  to 
be  founded,  they  shall  bring  it  before  the  congregation, 
upon  which  the  votes  of  two-thirds  of  the  members  hav- 
ing a  right  to  vote  shall  be  sufficient  to  discharge  him 
from  his  office  ;  if  there  are  not  two-thirds,  but  a  majority 
against  him,  the  matter  may  be  submitted  to  the  synod. 
The  pastor  is  elected  by  a  majority  of  votes,  on  the  recom- 
mendation of  the  church  council. 

In  the  year  1841,  George  F.  Maschop,  one  of  the  de- 
fendants, was  elected  the  pastor  of  the  congregation  for  a 
term  of  years  not  expired.  The  bill  alleges  that  about  a 
year  ago,  he  commenced  a  systematic  effort  to  lead  the 
congregation  to  adopt  practices  in  church  worship,  which 
are  not  approved  or  practised  by  those  churches  which  are 
connected  with  the  Evangelical  Lutheran  Ministerium  of 
the  State  of  New  York  and  adjacent  parts,  among  which 
practices  was  the  use  of  lighted  candles  during  the  service 
in  the  church  in  the  daytime,  the  use  of  the  wafer  at  the 
sacrament  of  the  Lord's  supper,  auricular  confession,  the 
use  of  the  sign  of  the  cross,  and  such  Romish  practices  as 
are  disapproved  by  the  evangelical  branch  of  said  denomi- 
nation. The  bill  further  charges  that  the  said  Maschop  has 
endeavored  to  induce  the  congregation  to  dissolve  their 
connection  with  the  ministerium  of  New  York,  and  to 
form  a  connection  with  the  Buffalo  Synod  ;  that  he  is  ar  >i- 
trary  irf  the  exercise  of  his  office,  and  that  he  has  withdnv  m 
from  the  synod  of  New  York,  and  connected  himself  w  th 
the  Buffalo  synod ;  that  in  consequence  of  the  said  cond  ict 
and  practices  of  said  Maschop,  the  congregation,  in  J  ily 
last,  gave  him  notice  that  the  congregation  would  not  re- 
tain him  as  their  pastor  after  three  months  from  that  time. 
They  complain  that  he  refuses  to  discontinue  his  services 
as  such  pastor,  and  that  he  intends,  by  the  introduction 
of  new  members  into  the  congregation,  entertaining  reli- 
gious views  corresponding  with  his  own,  to  wrest  the  said 
church  property  from  the  purposes  to  which  it  was  devoted. 


60  CASES  IN  CHANCEKY. 

Lutheran  Church  v.  Maschop. 

The  bill  further  alleges  that  the  trustees  committed 
the  charge  and  custody  of  the  church  premises  to  one 
Henry  W.  Yanss,  in  order  that  he  might  prevent  the  said 
Maschop  from  the  further  use  of  the  said  church  ;  that  the 
trustees  applied  to  the  sexton  for  the  keys  of  the  church, 
but  he  refuses  to  deliver  them  ;  that  the  said  trustees,  the 
complainants,  attempted  to  lock  up  the  church,  according 
to  a  vote  of  the  board,  but  that  two  of  the  trustees,  who  are 
in  the  minority,  resisted,  and  would  not  suffer  the  trus- 
tees of  the  church  to  take  possession ;  and  that  said  Mas- 
chop  and  his  friends  threaten,  that  if  the  trustees  take 
possession  of  the  church  property,  they  will  forcibly  re- 
take possession  of  the  same.  The  complainants  pray  that 
the  defendants  may  be  enjoined  and  restrained  from  in- 
terfering with  the  legal  posession  of  the  said  pro-perty  by 
the  complainants,  or  from,  in  any  manner,  preventing  the 
complainants  from  taking  charge  of  and  controlling  the 
said  property,  and  from  taking  any  action  or  measures 
whereby  the  present  members  of  the  said  congregation 
shall  be  disfranchised  of  their  right  to  vote,  and  that  the 
said  trustees  may  by  no  action  of  the  said  church  be  de- 
prived of  any  of  their  official  functions  and  powers,  and 
that  the  said  trustees  may  have  access  to  the  books  and  seal 
of  the  church. 

This  court  has  no  right  to  institute  an  inquiry  into  the 
doctrines  or  mode  of  worship  of  any  religious  society, 
except  such  inquiry  shall  become  absolutely  necessary 
for  the  protection  of  trust  property.  If  property  is  given 
to  a  particular  denomination  of  Christians  adhering  to 
certain  doctrines  and  forms  of  worship,  and  an  attempt  is 
made  to  pervert  the  property  to  any  use,  religious  or 
otherwise,  different  from  that  to  which  the  donor  devoted 
it,  it  is  the  duty  of  the  court  to  restore  the  property,  and 
to  protect.it  in  its  original  use.  To  do  this,  it  frequently 
becomes  necessary  for  the  court  to  inquire  into  the  pecu- 
liar tenets  and  doctrines  of  different  societies  claiming 
the  property  under  the  same  trust.  It  is  not  the  province 


FEBRUARY  TERM,  1854.  61 


Lutheran  Church  v.  Maschop. 


of  the  court,  in  pursuing  such  an  inquiry,  to  decide  which 
doctrines  are  correct,  but  which  society  maintains  the 
doctrines,  to  support  and  promulgate  which  the  donor  de- 
dicated the  property. 

The  doctrines  and  ceremonies  of  the  Evangelical  Lu- 
theran Church  were  very  fully  and  ably  discussed  upon 
the  argument ;  and,  on  the  part  of  the  defendants,  an  ef- 
fort was  made  to  show  that  the  ceremonies,  which  the 
bill  complains  the  pastor  had  introduced  into  the  congre- 
gation, were  not  inconsistent  with  the  Ausbergh  Con- 
fession or  the  teaching  of  Luther's  Smaller  Catechism. 

After  giving  to  the  case  the  best  consideration  in  my 

.  power,  I  do  not  think  it  one  in  which  the  court  is  called 

to  decide  upon  the  religious  belief  or  ceremonies  of  the 

society  or  of  any  of  the  individuals  connected  with  this 

controversy. 

The  complainants  are  in  possession  of  the  property  in 
question.  Their  right  to  the  property  as  trustees,  under 
the  deed,  is  not  disputed.  It  is  not  alleged  that  the  de- 
fendants claim  the  property  adversely  to  them.  The  Rev. 
Mr.  Maschop,  as  their  pastor,  introduced  into  the  church 
certain  ceremonies,  which  the  complainants  allege  have  a 
Romish  tendency,  and  are  opposed  to  the  precepts  and 
practices  of  the  Evangelical  Lutheran  Church,  to  main, 
tain  the  doctrines  and  ceremonies  of  which  the  donor 
granted  the  property.  The  complainants  thereupon  dis- 
solved the  connection  existing  between  the  congregation 
and  Mr.  Maschop,  as  their  pastor,  and  gave  him  notice  to 
discontinue  his  services.  This,  for  the  purposes  of  this  ar- 
gument, it  must  be  assumed,  they  had  a  right  to  do.  The 
bill  does  not  allege  that  the  defendants  question  this 
right ;  but  the  complaint  is,  that  notwithstanding  all 
this,  Mr.  Maschap  still  intrudes  himself  upon  the  congre- 
gation, and  that  he  is  making  efforts  to  displace  porno  of 
the  complainants  as  trustees.  The  effect  of  an  injunction 
in  this  case  will  be  to  prohibit  Mr.  Maschop  from  intrud- 
ing himself  into  the  church,  and  officiating  there  as  a 

VOL.  H.  F 


62  CASES  EN"  CHANCEKY. 

Lutheran  Church  v.  Maechop. 

clergyman.  Mr.  Maschop,  assuming  the  allegations  of  the 
bill  as  true,  has  no  better  right  to  officiate  in  that  church 
than  any  other  clergyman.  This  court  would  not,  there- 
fore, be  any  more  justified  in  issuing  an  injunction  to 
prohibit  Mr.  Mascop's  preaching  in  the  church,  than  it 
would  be  to  enjoin  a  clergyman  of  any  other  denomina- 
tion, who,  without  any  pretence  of  right,  should  take 
upon  himself  to  trespass  upon  this  congregation,  by  en- 
tering their  pulpit  and  promulgating  his  peculiar  reli- 
gious doctrines.  According  to  the  bill,  Mr.  Maschop  is  a 
mere  trespasser,  without  the  shadow  of  right.  This  court 
has  no  more  authority  to  enjoin  such  a  trespasser  than  it 
has  to  enjoin  an  intrruder  into  another's  private  domicile.  » 

But  the  bill  further  alleges,  that  by  the  constitution  of 
the  church,  the  pastor  is  required  to  be  connected  with 
some  evangelical  Lutheran  synod  of  the  United  States; 
that  Mr.  Maschap  is  not  so  connected,  but  has  united  him- 
self with  the  Buffalo  synod.  No  misconduct  of  Mr.  Maschop 
can  justify  the  interference  of  this  court.  The  congrega- 
tion have  already  deposed  him  as  their  pastor  for  such 
alleged  misconduct.  The  real  difficulty  now  is,  that  he 
will  officiate  in  spite  of  such  deposition. 

The  bill  further  alleges,  that  Mr.  Maschop   intends  to 

take  measure  to  deprive   such  members  as   are    opposed 

to  him  of  their  right  to  vote,  and  compel  such  members 

to  take  pews,  and  contribute  to  his  support,  or  else  to  be  . 

disfranchised  of  any  right  to  vote  in  matters  affecting  the 

church  property,    and  so  to  depose    the  present   trustees, 

and  thereby  obtain  undisputed  possession  of  the   church 

for  his  own  purposes.     The  court  is  asked  to  interfere  to 

prevent  this.     From  anything  that  appears  upon  the  face 

.of  this  bill,   these  apprehensions  of  the  complainants  are 

.  entirely  groundless.     The  court   cannot   grant  an  injunc- 

:  tion  to  allay  the  fears  and  apprehensions   of  individuals ; 

they  must   show  the   court  that  the   acts   against  which 

they  ask  protection  are   not  only  threatened,  but  will,  in 

probability,  be  committed  to  their  injury.     How  can  the 


FEBRUARY  TERM,  1854.  63 


Blrdsall  c.  Colie. 


Rev.  Mr.  Maschop  depose  such  members  as  are  opposed 
to  him,  or  compel  members  to  take  pews,  or  deprive  them 
of  their  right  to  vote  or  turn  out  of  office  the  present 
trustees  ?  As  the  pastor  of  the  congregation,  he  possessed 
no  power  to  accomplish  any  of  those  objects.  Being  dis. 
robed,  as  he  is,  of  all  such  official  authority  and  influence, 
it  cannot  well  be  conceived,  if  any  such  purposes  are  rne_ 
ditated,  how  he  can  effect  them.  If  it  should  be  answered., 
he  may  convert  a  majority  of  the  congregation  to  the 
adoption  of  his  doctrines,  and  by  this  means  gain  his 
ends,  I  can  only  say,  this  court  has  no  power  for  any  pur- 
pose, or  under  any  circumstances,  to  prevent  any  indivi- 
dual from  teaching  any  religious  doctrine  he  pleases. 

I  can  see  no  ground  to  justify  the  interference  of  the 
court  The  complainants  are  in  the  full  possession  and 
enjoyment  of  their  property.  If  the  defendants  trespass 
upon  that  possession,  the  complainants  must  redress  them- 
selves against  such  trespasses  in  the  courts  of  law  in  the 
ordinary  mode. 

CITED  in  Cot  T.  Petfrs,  J  Beat.  42;  Randall  v.  Uortll,  2  C.  E.  Or.  346;   Sitgko^ner  ». 
Wtitsenborn,  5  C.  E.  Gr.  177;  JBichardt  v.  Bui-man,  65  Ji.  C.  (Norlk  Carolina.  16«. 


JAMES  II.  BIBDSALL  vs.  JAMES  "W.  COLIE. 

Where  a  copartnership  is  not  deterrainnble  at  will,  and  the  court  i*  resorted  to  for 
the  purpose,  a  receiver  will  be  appointed  of  course  The  reason  is,  that  whatever 
justifies  the  court  in  decreeing  a  dissolution,  establishes  the  propriety  of  appointing 
a  receiver.  « 

But  when  a  partnership  Is  dissolved  by  mutual  consent,  or  determined  by  the  wil' 
of  either  party,  a  Court  of  Chnncpry  will  not,  as  of  coarse,  without  any  reason,  ex- 
cept that  each  is  the  wish  of  one  of  the  parties  interested,  assume  the  control  of 
the  business,  and  place  it  in  the  hands  of  a  mere  stranger. 

The  court  will  appoint  a  receiver  wherever  it  shall  appear  that  it  is  necessary  to  do  so 
in  order  to  protect  the  interest  of  the  prrtiea. 


Complainant  filed  his  bill  praying  a  dissolution  of  part- 
nership, an  account,  and  receiver.  The  hill  charges  im- 
proper conduct  on  the  part  of  the  defendant,  the  partner. 


64  CASES  IN  CHANCERY 


Blrdsall  v.  Colie. 


Defendant  answered,  denying  all  charges  of  improper 
conduct,  &c. 

L.  C.  Crrover,  for  complainant. 
Runyon,  for  defendant. 

THE  CHANCELLOR.  The  complainant  asks  that  the  part- 
nership existing  between  himself  and  the  defendant  may 
be  dissolved  by  a  decree  of  this  court ;  that  the  defendant 
may  be  decreed  to  account,  &c.,  and  that  a  receiver  or  re- 
ceivers may  be  appointed.  The  ground  upon  which  the 
interference  of  the  court  is  asked  is  misconduct  on  the 
part  of  the  defendant  in  managing  the  partnership  busi- 
ness. The  answer  is  a  satisfactory  denial  of  all  the  charges 
as  to  misconduct,  and  the  explanations  given  show  an 
attempt  on  the  part  of  the  complainant  to  embarrass  the 
partnership  and  to  defraud  the  defendant.  The  impres- 
sion made  by  the  bill  and  answer  is  very  unfavorable  to 
the  complainant. 

But,  on  behalf  of  the  complainant,  it  is  insisted  that 
he  is  entitled  to  the  injunction,  and  to  have  a  receiver, 
although  the  defendant  may  be  chargeable  with  no  mis- 
conduct. 

The  terms  of  the  copartnership  were  in  parol,  and  the 
period  of  its  existence  not  limited.  It  was,  of  course,  de- 
terminable  at  the  will  of  either  party.  The  complainant, 
gave  no  notice  of  his  wish  to  determine  it,  until  he  de- 
clared it  by  exhibiting  his  bill. 

The  broad  ground  taken  is,  that  where  such  a  copartner- 
ship exists,  either  party  may  at  any  time  file  his  bill  ask- 
ing for  a  decree  of  dissolution ;  and  that,  being  entitled 
to  such  a  decree,  the  injunction  and  receiver  follow  of 
course. 

The  authorities  relied  upon  are,  Law  v.  J*brd,  2  Page 
310;  Martin  v.  Van  Schaic,  4  Page  479. 

These  cases  are  very  briefly  reported,  and  I  do  not  think 


FEBRUARY  TERM,  1854.  65 


Birdsall  u.*Colie. 


can  be  relied  upon  to  sustain  the  principle  as  broadly  as 
it  is  contended  for  on  behalf  of  the  complainant. 

Where  the  copartnership  is  not  determinable  at  will, 
and  the  court  is  resorted  to  for  the  purpose,  then  it  follows 
that  a  receiver  will  be  appointed  of  course.  The  reason 
is,  that  the  misconduct,  or  breach  of  trust,  or  the  neces- 
sity, whatever  it  may  be,  which  justifies  the  court  in  de- 
creeing a  dissolution,  establishes  the  propriety  of  appoint- 
ing a  receiver.  But  that,  whenever  a  partnership  is  dis- 
solved by  mutual  consent,  or  determined  by  the  will  of 
either  partner,  a  Court  of  Chancery  will,  as  of  course, 
and  without  any  reason,  except  that  such  is  the  wish  of 
one  of  the  parties  interested,  assume  the  control  of  the 
business,  and  place  it  in  the  hands  of  a  mere  stranger, 
appears  to  me  a  rule  which,  in  its  general  application, 
would  work  great  injustice,  and  which  I  am  not  willing 
to  adopt.  Many  a  solvent  partnership  would  terminate  in 
insolvency,  if  its  affairs  were  suddenly  committed  to  the 
hands  of  a  stranger  unacquainted  with  the  intricacies  of 
its  business,  the  situation  of  its  assets,  and  the  character 
of  its  debtors.  Why,  of  course,  should  an  honest  and  com- 
petent man,  for  no  other  reason  than  to  gratify  the  whim, 
caprice,  or  ill-nature  of  another,  with  whom  he  had  been 
connected  in  business,  be  suddenly  deprived  of  the  man- 
agement of  his  affairs,  and  be  subjected  to  the  delay  and 
exp.;:/*  of  a  protracted  settlement  in  this  court  ? 

In  **  -ilaon  v.  Greenwood,  1  Swanston  480,  Lord  Eldon 
says,  "When  a  partnership  expires,  whether  by  the  death 
of  the  parties  or  by  ettluxion  of  time,  without  special  pro- 
vision as  to  the  disposition  of  the  property,  in  all  these 
eases,  to  which  I  may  add  the  bankruptcy  of  a  partner, 
the  partnership  is  considered,  in  one  sense,  as  determined, 
but  in  a  sense  also  as  continued,  that  is  continued  till  all 
the  affairs  are  settled  :  and,  as  in  the  ordinary  course  of 
trade,  if  any  of  the  partners  seek  to  exclude  another  from 
taking  that  part  in  the  concern  which  he  is  entitled  to  take 
the  court  will  grant  a  receiver,  so  in  the  course  of  wind- 


66  CASES  IN  CHANCEKY. 

BirdsaU  c.  Colie. 

ing  up  the  affaire  after  the  determination  of  the  partner- 
ship, the  court,  if  necessary,  interposes  on  the  same  prin- 
ciple." The  Lord  Chancellor  does  not  state  the  appoint- 
ment of  receiver  as  a  matter  of  course,  but  that  the  court 
will  so  interpose  where  there  is  a  necessity  for  it. 

Chancellor  Kent  (vol.  3,  63,  of  his  Commentaries),  speak- 
ing of  the  consequences  of  dissolution,  says,  "But  until 
the  purpose  of  finishing  the  prior  concerns  be  accom- 
plished, the  partnership  may  be  said  to  continue ;  and  if 
the  object  fie  in  danger  of  being  defeated  by  the  unjustifiable 
acts  or  conduct  of  any  of  the  partners  a  court  of  equity  will 
interfere,  and  appoint  a  manager  or  receiver  to  conduct  and 
settle  the  business." 

In  Harding  v.  Glover,  18  Yes.  281,  a  motion  was  made 
for  a  receiver  after  a  dissolution  of  partnership.  The  re- 
ceiver was  appointed  on  the  ground  of  misconduct.  But 
the  Lord  Chancellor  said,  "  I  have  frequently  disavowed, 
as  a  principle  of  this  court,  that  a  receiver  is  to  be  appoint- 
ed merely  on  the  ground  of  a  dissolution  of  partnership. 
There  must  be  some  breach  of  duty  of  a  partner  or  of  the 
contract  of  partnership." 

I  had  occasion  to  examine  the  authorities  on  this  point 
in  the  case  of  Renton  v.  Chaplain  and  Carter  (1  Stock.  62,) 
and  the  conclusion  was,  that  the  court  ought  not  to 
assume  the  control  of  partnership  affairs,  unless  some  ne- 
cessity for  its  doing  so  .  was  made  manifest.  Upon  the 
principles  of  that  decision,  the  complainant  is  not  entitled 
to  the  injunction  and  receiver,  as  prayed  for. 

The  complainant  is  entitled  to  an  account;  the  defend- 
ant is  at  liberty,  at  any  time  during  the  progress  of  the 
suit,  to  apply  for  a  receiver,  and  the  court  will  appoint 
a  receiver  whenever  it  shall  appear  that  it  is  necessary  to 
do  so  in  order  to  protect  the  interest  of  the  par-ties. 


FEBRUARY  TERM,  1854  67 


Cole  v.  Potts. 


LEWIS  COLE  vs.  "WILLIAM  POTTS. 

One  who  enters  into  the  possession  of  lands  as  tenant,  And  claims  title  and  possession 
by  virtue  ot  a  subsequent  parol  agreement,  partly  carried  into  execution,  must 
establish  the  contract,  by  competent  proofs,  to  1  e  clear,  definite,  and  unequivocal 
in  all  its  terms ;  and  the  acts  upon  which  he  relies  as  part  p_>rfonnanee  must  be 
precise  and  certain,  and  referable  exclusively  to  th3  contract. 

Payment  ot  the  purchase  money,  or  a  part  of  it,  is  not  such  a  part  performance  aa 
will  take  tbe  case  out  of  the  statute. 

If  he  relies  upon  possession  as  part  performance,  he  must  show,  by  unequivocal  proof* 
that  th-  tenacy  was  abandoned,  and  that  his  possession  as  a  tenant  was  changed  into 
that  of  a  vendee,  under  the  specific  contract  he  is  seeking  to  enforce. 


Upon  filing  his  bill,  the  complainant  obtained  an  in- 
junction restraining  the  defendant  from  prosecuting  an 
action  against  him  to  recover  the  possession  of  certain 
premises  described  in  the  bill.  The  cause  now  came  on  for 
final  hearing  upon  pleadings  and  proofs. 

S.  R  Hamilton,  for  complainant. 
M.  Beasley,  for  defendant. 

THE  CHANCELLOR.  The  foundation  of  the  complainant's 
right  to  relief  rests  entirely  upon  the  parol  agreement,  al- 
leged to  have  been  made  between  Edward  "W.  Potts  and 
himself,  respecting  the  premises  which  are  the  subject -of 
this  controversy.  That  agreement  is  stated  in  the  bill  to  have 
been  this:  that  Edward  "W.  Potts  was  the  owner  in  fee 
simple  of  the  premises  and  the  complainant  in  possession 
as  his  tenant;  that  such  tenancy  had  existed  for  about  four 
years,  during  which  time  the  complainant  had  been  in  the 
service  of  Potts  as  a  tanner ;  that  Potts  became  in  arrear 
for  wages  in  about  three  hundred  dollar*,  which  was  the 
estimated  value  of  the  premises ;  and  that,  in  payment, 
and  satisfaction  of  the  arrear  of  wages  so  due  and  owing, 


68  CASES  IN  CHANCEKT. 

Cole  v.  Potts. 

and  of  other  good  and  valuable  considerations  him  there- 
unto moving,  he,  on  or  about  the  fourth  day  of  Septem- 
ber, 1830,  bargained,  sold,  and  delivered  unto  the  com- 
plainant the  land  and  premises  in  fee  simple,  and  then  and 
there  put  him  in  full  possession  thereof,  as  the  owner. 
The  bill  alleges,  that  from  that  time  up  to  exhibiting  his 
bill  of  complaint,  the  complainant  has  been  in  possession, 
as  the  owner,  has  paid  the  taxes,  and  has  put  improvements 
on  the  premises. 

The  answer  is  a  full  denial  of  the  complainant's  equity, 
and  his  case  is  not  sustained  by  the  proofs  taken. 

The  complainant  relies  upon  a  parol  agreement,  partly 
carried  into  execution.  He  must  establish  the  contract, 
by  competent  proofs,  to  be  clear,  definite,  and  unequivocal 
in  all  its  terms ;  and  the  acts  upon  which  he  relies  as  part 
performance  must  be  precise  and  certain,  and  referable 
exclusively  to  the  contract.  In  both  particulars,  the  com- 
plainant has  failed. 

First,  as  to  the  contract.  The  witness  relied  upon  to 
prove  the  contract  is  Abner  Cole,  the  complainant's  son. 
He  was  the  only  witness  present  at  the  time  it  was  made. 
He  says,  "  I  recollect  the  time  Edward  Potts  was  prepar- 
ing to  go  to  the  South  the  last  time ;  it  was  in  the  fall ;  it 
was  on  a  Saturday  night,  in  the  office  in  front  of  the  yard : 
my  father  said  to  Edward  Potts,  I  would  like  to  settle  be- 
fore you  go  away ;  Mr.  Potts  said  to  him,  Lewis,  are  you 
going  to  stay  on,  and  keep  the  house ;  my  father  said  to 
him,  I  don't  know,  sir,  I  don't  know  how  we  stand.  He 
then  said  to  my  father,  you  have  got  the  house  near  about 
paid  for  now,  and  you  can  work  on  till  spring ;  and  then, 
in  the  spring,  I'll  be  back  again ;  but  if  I  never  come  back 
again,  that  house  is  yours."  It  is  very  clear  this  is  not 
proof  of  the  contract  set  out  in  the  bill,  and  in  fact  it  is 
on  contract  at  all.  It  was  only  an  offer,  on  the  part  of 
Mr.  Potts,  to  sell  complainant  the  house ;  and  so  far  from 
the  complainant's  accepting  the  offer,  he  never  recalled 
or  modified  his  reply,  that  he  did  not  know  whether  he 


FEBEUAKY  TEEM,  1854.  69 


Cole  v.  Potts. 


would  take  the  house.  No  price  was  named ;  no  terms 
were  fixed;  there  was  no  agreement  made,  which  this 
court  can  enforce  under  any  circumstances.  There  are 
other  witnesses,  who  certify  that  they  heard  Mr.  Potts  say 
lie  had  sold  complainant  the  house  ;  but  the  nearest  any  of 
them  come  to  any  terms  upon  which  the  sale  was  made 
is,  that  the  price  was  to  be  two  hundred  and  forty,  or  two 
hundred  and  fifty  dollars. 

Again,  as  to  the  proof  of  the  execution  of  the  contract 
upon  which  the  complainant  relies,  the  evidence  falls  very 
far  short  of  proving  any  acts  which  the  court  can  recog- 
nize as  sufficient  for  that  purpose.  As  to  the  payment  of 
the  purchase  money,  it  depends  upon  the  fact,  whether 
there  were  any  unsettled  accounts  between  the  complain- 
ant and  Edward  Potts,  and  whether  Potts  owed  the  com- 
plainant anything.  It  is  not  shown  that  they  had  any 
settlement,  nor  are  the  accounts  between  them  exhibited. 
But  satisfactory  proof  upon  this  point  would  not  take  the 
case  out  of  the  statute.  Payment  of  the  purchase  money, 
or  of  a  part  of  it,  is  not  such  a  part  performance  as  will 
take  the  case  out  of  the  statute.  Story's  Eq.  J.  §  760. 

As  to  the  possession.  If  a  party  relies  upon  possession 
as  part  performance,  he  must  show  that  he  enjoyed  that 
possession  under  the  contract.  If  he  came  in  as  a  tenant, 
he  must  show  by  unequivocal  proof,  that  the  tenancy 
was  abandoned,  and  that  his  possession  as  a  tenant  was 
changed  into  that  of  a  vendee  under  the  specific  contract 
lie  is  seeking  to  enforce.  In  this  case  the  bill  admits 
that  the  complainant  was  .in  possession  as  the  tenant  of 
Potts,  and  there  is  no  proof  as  to  how  or  when  that  ten- 
ancy was  changed.  But  the  proof  in  the  cause  is  most 
satisfactory,  that  the  complainant  was  not  in  possession 
as  vendee.  It  is  proved  that  for  more  than  sixteen  years, 
lie  lias  been  the  tenant  of  the  defendant,  and  that  during 
that  whole  period  he  has  paid  the  rent.  lie  has  ac- 
knowledged this  tenancy  in  every  possible  way.  lie  lias  taken 
receipts  from  time  to  time  from  the  defendant,  as  his 


70  CASES  IN  CHANCERY. 

Kearney  v.  Andrews. 

landlord.  He  has  sent  individuals  to  the  defendant  to 
negotiate  for  a  purchase  of  the  property.  His  property 
has  been  distrained  by  the  defendant  for  rent,  and  sold. 

I  cannot  see  that  the  complainant  has  the  least  claim  to 
have  his  possession  protected  by  the  court.  The  injunc- 
tion must  be  dissolved,  and  the  bill  dismissed  with  costs. 


LAWRENCE  KEARNEY  and  others  vs.  SOLOMON  ANDREWS, 
THE  INHABITANTS  OF  THE  CITY  OF  PERTH  AM  BOY,  and 
others. 


This  court  will  not  assume  a  jurisdiction  to  try  the  lawful  election  of  officers 
and  the  validity  of  ordinances  of  corporate  bodies  upon  the  mere  allegation 
that  the  complainants  are  holders  of  real  estate  in  a  city,  and  that  the  value 
of  their  property  is  directly  involved  in  proceedings  which  are  going  on 
and  threatened,  and  that  the  proceedings  are  useless,  and  will  tend  to  de- 
preciate their  property  in  value. 

The  power  of  filling  vacancies  being  incident  to  a  corporation,  it  has  the 
right,  by  its  by-laws,  to  prescribe  the  manner  in  which  such  vacancies  shall 
be  filled,  provided  it  is  not  inconsistent  with  the  design  of  the  charter. 

The  city  council  of  Perth  A  mboy  have  no  right  to  elect  its  own  members  ; 
the  law  declares  that  the  members  constituting  the  city  council  shall  be 
elected  by  the  electors  of  the  city  by  ballot.  The  city  council  cannot  con- 
fer this  authority  elsewhere,  nor  can  they  usurp  it  themselves. 

The  provisions  in  the  act  to  incorporate  the'  city  of  Perth  Amboy,  that  the 
oaths  of  office  should  be  taken  and  subscribed  within  ten  days  after  the 
election,  is  directory  only,  and  an  alderman  and  members  duly  elected 
did  not  forfeit  their  offices  by  their  neglect  of  being  sworn  in  within  ten 
days  after  their  election. 

An  ordinance  of  the  city  of  Perth  Amboyr  which  ordained  that  the  streets  be 
graded  and  regulated,  but  did  not  specify  how,  nor  refer  to  maps,  profiles, 
or  to  any  order  or  proceeding  by  or  under  the  authority  of  the  council,  by 
•which  it  could  be  ascertained  how  the  grading  was  to  be  done,  was  held  to 
in  violation  of  the  rights  of  the  land  owners  in  the  city,  and  unlawful,  as 
they  could  not  comply  with  its  requirements,  and  the  act,  if  they  did  not  do 
so  within  two  months,  deprived  them  of  the  privilege  of  doing  it  themselves. 

But  although  the  ordinance  is  illegal,  the  court  will  not  grant  an  injunction 
simply  on  the  ground  of  the  illegality  of  the  ordinance.  The  injury  must 
be  specified,  and  so  pointed  out  that  the  court  can  see  it  must  be  the  inev  i- 
table  consequence  of  the  act  threatened  and  complained  of. 


FEBRUARY  TEEM,  1854.  71 

Kearney  v.  Andrews. 

C.  Parker,  for  motion. 

James  S.  Green,  contra. 

THE  CHANCELLOR.  The  object  of  the  bill  is  to  restrain 
the  defendants,  under  certain  alleged  ordinances  of  the 
city  council  of  "  the  Inhabitants  of  the  City  of  Perth 
Amboy,"  from  altering  the  grade  of  the  streets  and  high- 
ways of  the  city  of  Perth  Amboy,  mentioned  in  the  said 
ordinances ;  and  also  to  enjoin  the  treasurer  of  the  city 
from  paying  to  any  member  of  the  city  council  any  money, 
by  way  of  compensation  for  any  services  which  they,  in 
their  official  capacity,  may  render  the  said  city,  and  to  de- 
clare the  said  ordinances  void. 

The  complainants  insist — 

First,  that  the  said  ordinances  are  illegal,  and  should  be 
held  and  declared  void,  because  they  were  passed  in  vio- 
lation of  the  statute  from  which  the  corporation  derives 
its  corporate  powers. 

The  act  to  incorporate  the  City  of  Perth  Amboy  was 
passed  the  27th  of  February,  1844.  It  repealed  an  old 
act,  incorporating  the  said  city,  of  1781,  except  the  ninth 
section  thereof.  Among  other  officers  of  the  said  city, 
the  act  declares  there  shall  be  a  mayor,  a  recorder,  three 
aldermen,  and  six  members  of  common  council ;  that 
these  officers  shall,  before  they  enter  upon  the  duties  of 
office,  respectively  take  and  subscribe  the  oath  or  affirma- 
tion of  allegiance  to  this  state,  and  an  oath  or  affirmation 
that  he  will  faithfully,  impartially,  and  justly  perform  all 
the  duties  of  such  office,  BO  far  as  in  him  lies,  and  that 
such  oath  or  affirmation  shall  be  so  taken  and  subscribed 
within  ten  days  after  the  election ;  that  the  said  officers 
shall  be  elected  by  ballot,  by  the  electors  of  the  said  city, 
on  the  second  Monday  of  April  annually,  from  among 
the  citizens  residing  therein ;  that  the  mayor,  recorder, 
aldermen,  and  common  council,  or  the  major  part,  of 
whom  the  mayor  or  recorder  shall  be  one,  shall  constitute 


72  CASES  IN  CHANCERY. 

Kearney  v.  Andrews. 

a  city  council,  which  shall  have  power  to  meet  on  their 
own  adjournments,  and  the  whole  legislative  authority 
shall  be  exclusively  vested  therein  ;  provided,  no  ordinance 
or  by-law  be  passed,  altered,  or  repealed,  without  the 
consent  of  a  majority  of  all  the  members  thereof. 

It  thus  appears  that  the  city  council  is  composed  of 
eleven  members  ;  that  all  legislative  authority  is  exclusively 
invested  in  them  ;  and  that  no  ordinance  or  by-law  can  be 
passed,  altered,  or  repealed,  without  the  consent  of  six  of 
the  members. 

At  the  meeting  at  which  the  ordinances  in  question  were 
passed,  there  were  six  members  only  present,  the  mayor, 
one  aldermen  and  two  members  of  common  council,  who 
were,  it  is  admitted,  regnlarly  elected  at  the  annual  meet- 
ing, and  sworn  into  office,  and  one  Robert  Freeman,  who 
assumad'to  act  as  an  alderman,  and  Cornelius  White,  who 
assumed  to  act  as  a  member  of  the  common  council.  It 
is  insisted  that  neither  Freeman  nor  White  had  any  right 
to  act  in  their  assumed  capacities ;  that  Freeman  was  not 
an  alderman,  and  that  White  was  not  a  member  of  the 
common  council ;  and  that,  consequently,  the  ordinances 
were  passed  in  violation  of  the  law,  which  requires  all  or- 
dinances to  be  passed  by  a  majority  of  the  city  council. 

At  the  annual  city  election,  three  aldermen  and  six 
members  of  the  common  council,  the  number  designated 
by  the  charter,  were  duly  elected..  One  of  the  aldermen 
and  one  of  the  members  of  the  common  council,  so  elec- 
ted, neglected  to  take  and  subscribe  the  oaths  or  affirma- 
tions required  within  ten  days  after  the  election.  The 
city  council  thereupon  passed  a  resolution  to  fill  these 
vacancies,  for  the  reason  of  such  neglect,  on  the  part  of 
the  members  elected,  in  not  taking  their  oaths  of  office. 
Freeman  and  White  were  then  elected  to  fill  the  vacancies, 
and  were  sworn  into  office.  Their  election  was  unlawful. 
There  is  no  mode  designated  by  the  charter  by  which 
vacancies  are  to  be  supplied.  The  power  of  filling  va 
cancies  being  incident  to  a  corporation,  (Angell  &  Ames, 


FEBEUAEY  TERM,  1854.  73 

Kearney  v.  Andrews. 

c.  83,  Kyd  79 ;  2  Kent  277),  it  has  the  right,  by  its  by-laws, 
to  prescribe  the  manner  in  which  such  vacancy  shall  be 
filled,  provided  it  is  not  inconsistent  with  the  design  of 
the  charter,  and  does  not  infringe  its  provisions.  Newling  v. 
Francis,  3  T.  R.  189.  But  the  city  council  had  no  right  to 
declare  who  should  be  the  electors.  No  authority  is,  by  the 
charter,  given  to  that  body  to  elect  its  own  members ;  and, 
by  the  common  law,  there  is  no  such  incident  appertaining 
to  it,  as  a  constituted  body,  under  the  charter  which  cre- 
ates it.  The  law  declares  that  the  members  constituting 
the  city  council  shall  be  elected  by  the  electors  of  the  city 
by  ballot.  The  city  council  cannot  confer  this  authority 
elsewhere,  nor  can  they  usurp  it  themselves.  If  the  power  to 
supply  vacancies  is  incident  to  this  corporation,  it  must  be 
exercised  by  the  body  at  large.  They  only  have  the  power 
to  elect  their  officers  when  no  other  mode  is  designated." 
The  power  of  election  reposed  in  a  select  body  may  be 
only  of  certain  officers ;  and  one  class  of  officers  may  be 
made  eligible  by  one  select  body,  and  another  class  by  a 
different.  And  if  it  is  declared  by  the  charter  by  whom 
some  officers  may  be  elected,  and  no  provision  is  made 
for  the  election  of  others,  the  others  must  be  chosen,  of 
course,  by  the  body  at  large,  by  virtue  of  their  incidental 
authority."  Angell  &  Ames  mi  Cor.  92,  and  Ib.  89.  "  The 
power  of  electing  both  officers  and  members  being  inci- 
dent to  every  corporation,  it  is  not  necessary  that  such 
power  should  be  expressly  conferred  by  the  charter.  And 
if  the  power  is  not  expressly  lodged  in  other  hands,  (as, 
for  instance,  in  a  body  of  directors)  it  must  be  exercised 
by  the  company  at  large."  "  Tke  power  of  election,  or 
the  supplying  of  members  in  the  room  of  such  as  are  re- 
moved by  death  or 'otherwise,  is  said  to  be  a  power  inci- 
dent to  and  necessarily  implied  in  every  aggregate  corpo- 
ration, from  the  principle  of  self-preservation.  But  it 
seldom  happens  that  an  opportunity  is  afforded  for  the  ap- 
plication of  this  principle,  because  the  power  of  election 
must  be  exercised  under  the  modification  of  the  charter 
VOL.  n  o. 


74  CASES  IK  CHANCERY. 

Kearney  v.  Andrews. 

or  statute,  of  which  the^  corporation  is  the  mere  creature, 
and  which  usually  prescribes  the  time  and  manner  of 
corporate  elections,  and  defines  the  qualifications  of  elec- 
tors." 2  Kenfs  Com.  293. 

It  does  not  follow  that  because  such  power  to  fill  vacan- 
cies is  incident  to  the  corporation  of  "  the  Inhabitants 
of  the  City  of  Perth  Amboy,"  therefore  the  "  city  coun- 
cil," a  board  of  officers  of  that  corporation,  in  whom 
certain  powers  of  the  body  corporate  are  specifically  and 
exclusively  vested,  are  authorised  to  supply  a  vacancy  in 
the  office  of  mayor,  or  alderman,  or  member  of  common 
council,  because,  virtute  qfficii,  they  compose  the  body  of 
officers  who  are  designated  the  "  city  council." 

I  am  of  opinion,  therefore,  ,that  Freeman  and  "White 
were  not  lawfully  members  of  the  city  council.  It  fol- 
lows that  the  ordinances  were  not  lawfully  passed,  and  can- 
not be  lawfully  enforced,  as  they  were  not  passed  by  a 
majority  of  all  the  members  of  the  body,  which  is  in  direct 
violation  of  a  provision  of  the  act  of  incorporation. 

It  was  further  insisted,  that  the  election  of  Freeman 
and  White  was  unlawful,  for  another  reason,  that  there 
were  no  vacancies  in  the  respective  office  of  alderman 
and  member  of  common  council ;  that  the  act,  in  pro- 
viding that  the  oaths  of  office  should  be  taken  and  sub- 
scribed within  ten  days  after  the  election,  was  directory- 
only  ;  and  that  the  alderman  and  member  duly  elected 
did  not  forfeit  their  offices  by  their  neclect  of  being 
sworn  in  within  ten  days  after  their  election. 

The  council  in  my  judgment,  are  right  in  this  con- 
struction. The  neglect  to  take  the  oath  of  office  did  not 
ipso  facto  vacate  the  office. 

The  officers  elected  would  have  been  legally  qualified 
to  discharge  their  duties  of  office,  had  they  been  sworn 
in  after  the  expiration  of  the  ten  days.  But  an  officer  of 
a  corporation  (unless  there  is  some  provision  to  the  con- 
trary) may  resign  his  office,  or  he  may  refuse  to  act ;  and 
in  either  case,  his  office  may  be  declared  vacant,  and  his 


FEBRUARY  TERM,  1854.  75 

Kearney  v.  Andrews. 

place  supplied.  If,  therefore,  he  is  required  to  take  an 
oath  of  office,  and  he  neglects  to  do  it  within  the  time 
prescribed  by  law,  while  such  neglect  does  not  ipso  facto 
vacate  his  office,  the  body  of  which  he  is  a  member  may 
declare  the  office  vacant  upon  the  ground  of  his  refusal 
or  neglect  to  assume  its  responsibilities  in  the  mode  di- 
rected by  law. 

But  the  second  principal  ground  upon  which  the  com- 
plainants rely  is,  that  it  is  unlawful  for  the  defendants  to 
enforce  these  ordinances,  because  they  establish  no  grade 
for  the  streets,  and  because  no  such  grade  was  in  fact 
established  by  the  council,  either  by  the  ordinances  or 
otherwise. 

By  the  tenth  section  of  the  act  entitled,  ;'An  act  to 
regulate  the  laying  out  of  streets  and  highways  in  the 
city  of  Perth  Amboy;  and  the  grading  and  improvement 
of  the  same,"  it  is  enacted,  "  that  it  shall  and  may  be  law- 
ful for  the  city  council  of  the  said  city  to  make  and  esta- 
blish ordinances  and  regulations  for  the  levelling,  grading, 
regulating,  paving,  curbing,  flagging,  or  gravelling  of  the 
streets  and  sidewalks  of  the  said  city ;  to  require  the 
work  to  be  done  by  the  owner  or  occupants  of  lots  front- 
ing or  adjoining  such  streets,  and  to  be  superintended  by 
a  commissioner  appointed  for  that  purpose,  who,  under  the 
direction  of  the  said  city  council,  shall  prescribe  the 
manner  in  which  such  work  shall  be  done ;  and  if  the 
owner  or  legal  representative  or  guardian  of  the  owner 
of  any  lot  in  front  whereof  the  street  or  walk  shall,  by 
such  ordinance  or  regulation,  be  directed  to  be  levelled, 
paved,  curved,  graded,  regulated,  flagged  or  gravelled, 
shall  neglect  to  comply  with  such  ordinance  or  regulation 
witin  two  months  after  the  passage  and  publication  of 
the  same,  it  shall  be  lawful  for  the  city  council  to  cause 
the  work  to  be  done,  agreeably  to  the  ordinance,  for  such 
person  so  neglecting,  and  to  cause  a  particular  account  of 
the  work  to  be  rendered  to  them,  and  recorded  in  their 
minutes,  and  properly  filed,"  «fec.  The  act  then  provides 


76  CASES  IN  CHANCERY. 

Kearney  v.  Andrews. 

the  manner  of  notifying  the  owners  of  such  lots  of  the 
amount,  and  of  the  time  and  place  to  make  payment,  and 
of  selling  such  lots  at  public  auction,  if  default  be  made 
in  the  payment  of  the  sum  assessed  or  allowed  for  the 
work  done.  And  it  gives  the  option  to  the  city  council, 
instead  of  selling  the  lots,  to  prosecute  the  owners  thereof 
in  a  suit  at  law,  and  to  recover  the  amount  paid  by  them 
for  the  work. 

Upon  the  face  of  the  ordinance  of  the  31st  of  August, 
1853,  and  which  is  the  one  against  which  relief  is  sought, 
no  grades  are  fixed  for  the  streets.  It  is  ordained  that 
the  streets  to  be  graded  and  regulated,  but  how  graded  or 
regulated,  is  neither  specified  in  the  ordinance,  nor,  by 
the  ordinance,  is  any  reference  made  to  maps,  profiles,  or 
to  any  order  or  proceedings,  by  or  under  the  authority  of 
the  council,  by  which  it  can  be  ascertained  how  the 
grading  is  to  be  done.  Indeed,  it  is  admitted  by  the  an 
swer,  that  at  the  time  this  ordinance  was  passed,  no 
grades  for  any  of  the  streets  had  been  established,  nor 
had  any  preparation  been  made  to  establish  them  ;  and 
all  that  the  city  council  has  done  since,  in  reference  to 
the  matter  is  to  approve  of  a  map  which  the  commissioner 
had  made,  and  order  the  same  to  be  paid  for  out  of  the 
city  treasury. 

How  could  any  owner  of  a  lot,  in  front  whereof  the 
street,  by  such  ordinance,  was  directed  to  be  graded  and 
regulated,  comply  with  its  requirement?  And  yet,  if 
he  did  not  do  the  grading  and  the  work  required  within  two 
months  after  the  passage  of  the  ordinance,  he  was  de- 
prived of  the  privilege  of  doing  it  himself ;  a  privilege, 
which  to  him  might  be  valuable,  but  at  all  events,  which 
the  statute  secured  to  him.  To  enforce  this  ordinance, 
under  such  circumstances,  against  any  land  owner  of  the 
city  is  in  violation  of  his  rights,  and  is  unlawful. 

But  although  the  ordinance  is  illegal,  for  the  reasons 
assigned,  the  question  remains,  whether  the  complainants 
are  entitled  to  the  injunction  of  this  court  prayed  for 
in  the  bill. 


FEBRUARY  TERM,  1854. 


Kearney  v.  Andrews. 


This  court  is  not  the  propor  tribunal  to  determine  the 
validity  of  an  election  of  an  officer  of  a  municipal  corpo- 
ration, nor  of  an  ordinance  of  such  corporation.  If  a  par- 
ty's rights  are  invaded,  and  an  injury  threatened  to  his 
property,  the  court  may,  in  a  collateral  way,  inquire  into 
the  legality  of  the  proceedings  under  color  of  which  the 
injury  is  threatened,  and  may  interfere  for  his  protection, 
!But  the  injury  must  not  be  remote  or  contingent.  It  must 
be  direct  and  apparent,  so  that  the  court  may  see  the  ne- 
cessity of  interfering  to  prevent  it.  The  court  has  no  au- 
thority to  interfere  simply  on  the  ground  of  the  illegality 
of  the  ordinance.  It  may  interfere  to  protect  an  indivi- 
dual whose  property  is  attempted  to  be  invaded  under 
color  of  its  authority. 

These  complainants  claim  the  protection  of  the  court 
because  they  "  are  holders  -of  real  estate  in  said  city,  and 
the  situation  and  value  of  the  property  of  each  of  them 
is  directly  involved  in  the  said  proceedings  going  on  and 
threatened;  and  b33ause,  in  most  cases,  the  proceedings 
going  on  are  really  useless,  and  will  tend  to  depreciate 
their  property  in  value." 

If  the  court  can  interfere  on'  these  grounds,  then  the 
owner  of  land  within  the  jurisdiction  of  a  municipal  cor- 
poration may  qnestion,  in  this  court,  the  validity  of  any 
ordinance  of  the  corporate  authorities  respecting  any  real 
estate  within  its  limits,  because  the  value  of  his  property 
may  be  affected  by  it.  This  would  be  assuming  a  juris- 
diction to  try  the  lawful  election  of  officers  and  the  vali- 
dity of  ordinances  of  corporate  bodies  upon  too  slight 
grounds.  How  are  "  the  situation  and  value  of  the  pro- 
perty of  each  of  these  complainants  directly  involved  in 
these  proceedings  ?"  The  mere  allegation,  amounting  to 
a  speculative  opinion  only  of  these  complainants,  is  not 
sufficient  for  the  court  to  act  upon.  The  injury  must  be 
specified,  and  so  pointed  out  that  the  court  can  see  it 
must  be  an  inevitable  consequence  of  the  act  threatened 
and  complained  of.  The  complainants  do  not  show  that 


78  CASES  IN  CHANCEKY. 

Stout  v.  Vankirk. 

the  land  they  own  is  situated  upon  any  of  the  streets  or- 
dered by  the  ordinance  to  be  graded.  They  do  not  show 
that  their  property  is  invaded,  or  how  the  situation  or 
value  of  their  property  is  affected  or  "  directly  involved." 

They  also  allege  that,  as  taxpayers  of  the  city,  they  are 
entitled  to  protection ;  that  the  ordinance  being  illegal, 
the  city  council  cannot  enforce  the  remedy  given  by  the 
statute  against  the  owners  of  property  fronting  on  such 
streets  as  shall  be  graded,  and  that,  consequently,  the  ex- 
penses will  fall  upon  the  city  at  large  and  all  its  taxable 
inhabitants.  But  can  this  court  assume  jurisdiction  in 
order  to  protect  the  complainants  against  any  such  remote 
and  uncertain  injury  as  this  ?  These  land  owners  may  not 
refuse  to  do  the  work,  or,  if  they  should,  they  may  not 
question  the  remedy  against  them.  In  either  event,  the 
apprehensions  of  the  complainants  will  not  be  realized. 

There  are  some  other  questions  involved  in  the  plead- 
ings, but  with  the  view  I  have  taken  of  the  points  already 
considered,  I  deem  it  unnecessary  to  notice  them. 

I  would  suggest,  whether  the  corporation  of  "  the  In- 
habitants of  Perth  Amboy"  is  a  proper  party  to  this  bill, 
and  whether  "  the  city  council"  is  not  a  necessary  party. 
There  is  no  complaint  made  against  any  act  of  the  corpo- 
ration. It  is  the  proceedings  of  the  city  council  that  are 
complained  of. 

The  motion  for  injunction  is  denied  with  costs. 

CJTBD  in  Paret  v.  Bayonne,  10  Vr.  564. 


JACOB   STOUT  vs.  BENJAMIN  VANKIRK,  ABRAHAM  CBTTSEB, 

and  others. 

A  Judgment  creditor,  or  his  assignee,  cannot,  after  the  judgment  has  been 
paid  in  any  way,  give  it  vitality  against  the  judgment  debtor,  and,  of 
course,  not  against  his  creditors.  The  assignee  takes  it  subject  to  all  the 
equities  between  the  original  parties. 

Nor  can  the  debtor  himself,  after  he  has  paid  the  judgment,  in  any  way  revive 


FEBKUAKT  TEEM,  1854.  79 


Stout  v.  Vankirk. 


it  against  a  bonttfide  mortgage  or  judgment  creditor,  who  had  a  lien  at  the 
time  of  payment,  or  acquired  prior  to  the  act  of  the  debtor,  by  which  it  is 
sought  to  affect  his  lien. 

Payment  by  the  debtor  operates  for  the  benefit,  and  as  a  release  in  favor  of 
creditors  having  liens  on  the  same  fund  bound  by  the  judgment. 


S.  R.  Hamilton^  for  complainant. 
M.  Beasley,  for  defendant,  A.  Cruser. 

THE  CHANCELLOR.  The  bill  is  filed  for  the  foreclosure 
and  sale  of  mortgaged  premises.  Tne  only  matter  of  dis- 
pute is  between  the  complainant  and  Abraham  Cruser, 
who  sets  up  a  judgment  prior  in  date  to  the  mortgage. 

The  mortgaged  premises  formerly  belonged  to  Benja- 
min Vankirk.  While  he  was  the  owner,  Samuel  Terhune 
recovered  against  him  the  judgment  in  question.  Subse- 
quent to  the  judgment,  Vankirk  executed  the  mortgage 
now  held  by  the  complainant. 

The  mortgage  was  given  to  secure  the  payment  of 
$500.  It  was  executed  by  Vankirk  and  wife  to  Charles 
H.  Stout,  on  the  llth  of  May,  1846.  On  the  next  day, 
Charles  H.  Stout  paid  off  the  judgment,  which  was  a  lien 
on  the  mortgaged  premises,  and  took  an  assignment  of  it 
from  Samnel  Terhune.  The  title  to  the  mortgage  and 
the  judgment  thus  became  united  in  Charles  H.  Stout. 

Charles  H.  Stout  sold  both  the  mortgage  and  judgment 
to  the  complainant  for  a  full  consideration,  The  mort- 
gage was  formally  assigned,  by  endorsement  under  hand 
and  seal,  and  the  bond  was  delivered  with  the  mortgage 
to  the  complainant.  There  was  no  assignment  of  the 
judgment.  The  reason  given  by  Charles  H.  Stout,  why  it 
was  not  assigned,  is  that  the  squire  did  not  know  how  to 
draw  the  assignment.  But,  he  says,  it  was  "paid,"  by 
him,  over  to  his  brother,  with  the  bond  and  mortgage. 
The  proof  is  very  satisfactory  that  the  complainant  was 
the  bonafde  owner  of  both  the  bond  and  the  mortgage, 
and  that  he  paid  for  them  the  full  amount  due  upon  them. 


80  CASES  IN  CHANCERY 

Stout  v.  Vankirk. 

The  bond,  the  mortgage,  and  the  assignment  of  the  judg- 
ment from  Terhune  to  Charles  H.  Stout  were  all  in  the 
possession  of  the  complainant,  as  the  evidences  of  his 
ownership. 

In  March,  1849,  Benjamin  Yankirk  and  Theodore  H. 
Reed  agreed  to  exchange  some  land  between  them,  but 
the  judgment  held  by  complainant  being  a  lien  upon 
Vankirk's  property,  he  could  not  give  a  clear  title.  It 
was  agreed  that  the  judgment  should  be  satisfied  by 
Reed's  conveying  his  lot  to  Jacob  Stout.  In  conformity 
to  this  arrangement,  Yankirk  and  wife  conveyed  his  lot 
to  Theodore  H.  Reed ;  Reed  conveyed  his  lot  to  Jacob 
Stout,  the  complainant,  and  Charles  H.  Stout,  instead  of 
cancelling  the  judgment,  released  to  Reed  the  premises 
conveyed  to  him.  The  next  we  find  of  the  formal  assign- 
ment of  the  judgment  executed  by  Terhune  to  Charles 
H.  Stout  (and  which  assignment  all  the  parties  seemed  to 
regard  as  a  kind  of  title  deed)  is  in  the  hands  of  Benja- 
min Yankirk,  the  judgment  debtor.  All  these  facts  are 
very  satisfactorily  proved,  and  the  whole  evidence  esta- 
blishes, beyond  a  question,  that  the  debtor  paid  the  judg- 
ment in  the  exchange  between  himself  and  Reed. 

Subsequent  to  this,  Charles  H.  Stout,  by  his  assignment 
under  his  hand  and  seal,  assigned  the  judgment  to  Abra- 
ham Cruser,  who  now  sets  it  up,  and  claims  priority  over 
the  complainant's  mortgage. 

A  judgment  creditor,  or  his  assignee,  cannot,  after  the 
judgment  has  been  paid  in  any  way,  give  it  vitality 
against  the  judgment  debtor,  and,  of  course,  not  against 
his  creditors.  The  assignee  takes  it  subject  to  all  the  equi- 
ties between  the  original  parties.  If,  then,  Charles  II. 
Stout  had  assigned  the  judgment  to  Cruser,  and  received 
from  him  the  consideration,  it  would  have  been  a  fraud 
on  the  part  of  Stout.  The  sufferer  would  be  Cruser,  and 
not  the  debtor  or  any  other  third  innocent  party. 

Nor  can  the  debtor  himself,  after  he  has  paid  the  judg 
ment,  in  any  way  revive  it  against  a  bona  fide  mortgage 


FEBRUARY  TERM,  1854.  81 


Stout  v.  Vankirk. 


or  judgment  creditor,  who  had  a  lien  at  the  time  of  pay- 
ment, or  acquired  prior  to  the  act  of  the  debtor,  by  which 
it  is  sought  to  affect  his  lien.  Payment  by  the  debtor 
operates  for  the  benefit,  and  as  a  release  in  favor  of 
creditors  having  liens  on  the  same  fund  bound  by  the 
judgment.  Bolles  v.  Wade  and  others,  3  Gr.  458. 
Whether,  therefore,  Cruser  purchased  the  judgment  of 
Charles  H.  Stout  or  of  Benjamen  Vankirk,  can  make  no 
difference,  as  far  as  the  rights  of  the  complainants  are  con- 
cerned. In  neither  case  can  the  judgment  be  interposed  to 
affect  his  mortgage. 

But,  in  justice  to  Charles  H.  Stout,  the  case  ought  not 
to  be  left  here.  The  evidence  shows  that  no  fraud  is  to 
be  imputed  to  him,  and  that  if  Cruser  is  a  sufferer,  he  has 
no  one  to  blame  but  himself  and  Benjamin  Vankirk. 

Charles  H.  Stout  did  not  receive  one  farthing  for  the 
assignment.  Cruser  does  not  pretend,  in  his  answer,  that 
he  paid  the  money  to  Stout.  He  alleges  he  paid  the 
money  to  Vankirk,  who  delivered  to  him  the  assignment. 
If  the  statement  of  the  transaction  in  the  answer  is  true, 
Vankirk  obtained  the  money  from  Cruser  through  fraud 
and  false  pretences.  Mr.  Cruser  cannot  be  regarded  as  en- 
tirely innocent  in  the  transaction.  Both  the  Stouts  were 
within  his  call.  If  he  had  have  made  application  to  either 
of  them,  as  he  was  bound  to  do,  he  would  not  have  be- 
come involved  in  the  difficulty.  He  chose  to  rely  upon 
the  assurances  of  Vankirk,  and  he  must  submit  to  the 
consequences.  It  is  true  Vankirk  produced  an  assign- 
ment from  Stout  to  Cruser,  which,  on  the  face  of  it,  was  an 
assurance,  upon  Stout's  part,  that  everything  was  correct. 
But  Vankirk  acted  as  Stout's  agent  in  procuring  that  as- 
signment. The  evidence  shows  he  procured  it  fraudu- 
lently. It  is  right,  therefore,  as  between  these  parties,  that 
Cruser  should  be  the  sufferer. 

The  complainant's  mortgage  is  entitled  to  priority  over 
the  judgment.  If  there  are  no  other  creditors  whom 
rights  are  affected,  an  account  may  be  taken  on  the  judg- 


82  CASES  IN  CHANCEKY. 

Flagg  v.  EonnoL 

ment.  As  Cruser  paid  the  money  to  Yankirk,  it  is  equit- 
able that,  as  between  them,  the  judgment  should  stand  as 
valid. 


WILLIAM  FLAGG  et  al.,  executors  of  Isaac  Y.  Yandoren, 
vs.  SETH  BONNEL  and  others. 

If  the  defendant  interposes  a  plea  in  bar  to  the  whole  bill,  and  the  complain- 
ant does  not  reply,  but  is  disposed  to  question  its  validity,  instead  of  the 
complainants  demurring  to  it,  the  defendant  must  set  it  down  for  argu- 
ment, and  this  answers  to  the  demurrer  at  law.  If  the  plea  should  be 
decided  not  to  be  good,  the  defendant  must  answer  the  bill ;  if  it  is  sus- 
tained, the  complainant  must  reply  to  it. 

When  he  does  reply  and  takes  issue,  the  determination  of  that  issue  is  final 


The  bill  alleges  that  James  Price,  William  Flagg,  and 
Henry  M.  Price  were  partners  in  trade,  and  became  em- 
barrassed in  their  business;  that  James  Price  was  seized 
in  fee  of  valuable  real  estate  in  New  Brunswick,  and  that, 
without  any  consideration  therefor,  he  conveyed  it  to 
Seth  Bonnel,  one  of  the  defendants,  to  the  end,  and  with 
the  intent  and  purpose,  to  hinder,  delay,  and  defraud  the 
creditors  of  the  said  James  Price  and  of  the  said  partner- 
ship; that  several  judgments,  for  large  amounts,  were 
recovered  against  the  said  partners,  and  executions  issued 
thereon,  and  returns  made  of  no  goods  or  lands  to  satisfy 
the  same ;  that  the  said  judgments  were  assigned  to  Isaac 
V.  Yandoren,  the  complainants'  testator,  and  are  still  un- 
satisfied. The  bill  prays  that  the  said  deed  may  be  de- 
clared fraudulent  and  void,  and  be  set  aside,  as  against 
the  said  judgments,  and  that  -the  defendant,  Seth  Bonnel, 
may  make  a  full  discovery,  <fec. 

To  this  bill  the  defendant,  Seth  Bonnel,  has  pleaded, 
"that  the  said  Isaac  Y.  Yandoren,  the  original  complain- 
ant in  the  said  bill  of  complaint,  and  who  is  now  de- 
ceased, never  had,  in  equity,  any  real  title  to  or  beneficial 


FEBRUARY  TERM,  1854.  83 

Flagg  v.  Bonnel. 

interest  in  the  said  several  judgments  in  the  said  bill  of 
complaint  mentioned,  and  that  he  was  a  mere  nominal 
assignee  of  the  said  judgments,  and  held  the  same  for  the 
use  and  benefit  of  the  said  William  Flagg,  by  whom  the 
several  considerations  in  the  said  bill  of  complaint  alleged 
to  have  been  paid  for  the  several  assignments  of  the  said 
judgments  were  paid ;  or  if  such  considerations  were  paid 
by  the  said  Isaac  V.  Vandoren,  the  same  were  paid  by 
him  at  the  request  of,  and  for  the  use  and  benefit  of  the 
said  William  Flagg,  and  not  for  his  own  use  or  on  his 
own  account;  and  that  the  said  judgments  now  belong  to 
the  said  William  Flagg  in  his  own  right,  and  not  as  one 
of  the  executors  of  the  said  Isaac  V.  Vandoren,  and  have 
therefore  and  thereby  become  extinguished  and  paid,  and 
ought  to  be  cancelled ;  and  that  the  said  Seth  Bonnel,  the 
defendant,  further  in  fact  saith,  that  he,  the  said  William 
Flagg,  who  is  now  one  of  the  executors  of  the  last  will 
and  testament  of  the  said  Isaac  V.  Vandoren,  is  the  same 
identical  William  Flagg  in  the  said  bill  of  complaint  men- 
tioned as  one  of  the  said  firm,  consisting  of  James  Price, 
Henry  W.  Price,  and  William  Flagg,  and  that  the  said 
William  Flagg  was  one  of  the  defendants  in  the  said  several 
judgments,"  &c. 

To  this,  plea  the  complainants  filed  a  replication,  and  the 
cause  was  heard  on  the  pleadings  and  proofs. 

II.  V.  Speer,  for  complainants. 
J.  W.  Scott,  for  defendants. 

THK  CHANCELLOR.  The  defendant  has  failed  to  support 
his  pica.  The  only  controversy  between  the  parties  is, 
whether  the  complainant  is  entitled  to  a  decree  according 
to  his  case  as  made  by  the  bill,  or,  as  the  defendants' 
counsel  insists,  whether  the  couit  will  permit  the  defend- 
ant to  answer.  The  defendant  lias  laid  no  special  ground 
before  the  court  why  the  practice  and  rules  of  pleading 


84:  CASES  IN  CHANCERY. 

Flagg  u.  Bonnel. 

should  be  departed  from  in  this  case.  The  case  is  an  ordi- 
nary one,  and  must  be  governed  by  the  settled  rules  of 
practice. 

The  plea  goes   to  the  whole  bill.     It  is  in  bar  to  the 
complainants'  equity ;   and  had  it  been  supported,   would 
have  been  final  and  conclusive  between  the  parties.     There 
is  no  difficulty  as  to  the  character  or  extent  of  the  plea. 
It  is  a  plea  to  the  merits,  and,  as  such,  must  be  disposed 
of.     On  behalf  of  the  defendant,  it  is  insisted  that,  as  to 
pleadings   being    conclusive    and    final,    the    practice    of 
courts  of  law  and  equity  is  analogous.      Admitting  the 
analogy,  I  do  not  perceive  how  it  can  aid  the  defendant. 
If,  at  law,  the  defendant  interposes  a  plea  in  bar,   the 
•plaintiff  must  either  demur  or  take  issue  upon  it.     If  he 
demur,  and  the  demurrer  is  sustained,  the  court  will,  in 
its  discretion,  permit  the  defendant  to  plead  anew ;  or  if 
judgment  is  against  the  demurrant,  he  will  be  permitted 
to  take  issue  on  the  plea.     But  if,  instead  of  demurring, 
the  plaintiff  should  take  issue,  the  trial  of  that  issue  is 
final.      So  in  a  court  of  equity,  if  the  defendant  interposes 
a  plea  in  bar  to  the  whole  bill,  and  the  complainant  does 
not  reply  to  it,  but  is  disposed  to  question  its  validity,  in- 
stead of  the  complainants  demurring  to  it,  the  defendant 
must  set  it  down  for  argument,  and  this  answers  to  the 
demurrer  at  law.     If  the  plea  should  be  decided  not  to  be 
good,  the   defendant  must  answer  the  bill.      If  it  is  sus- 
tained, the  complainant  must  reply  to  it.     When  he  does 
reply,  and  takes  issue,  the  determination  of   that  issue  is 
final.      The  practice  is  well  settled,  and  the  decisions  are 
uniform.      Dan.  C.  P.  224.      "  The  office  of  a  plea  in  bar 
at  law  is  to  confess  the  right  to  sue ;   avoiding  that  by 
matter  dek&rs,   and  giving  the  plaintiff  an   acknowledg- 
ment of  his  right,  independent  of  the  matter  alleged  by 
the  plea.      The  plea  alleges  some  short  points,  upon  which, 
if  issue  is  joined,  there  is  an  end  of  the  dispute.     In  this 
court,   in  general  cases  not  classed  among  those   where 
certain  averments  seem  to  have  been  required,  both  by 


FEBKUAEY  TEEM,  1854.  85 

Flagg  v.  Bonnel. 

the  plea  and  the  answer,  but  where  the  defendant,  pro  hoc 
vice,  for  the  sake  of  the  argument,  admits  the  whole  bill, 
I  have  understood  the  rule  to  be  the  same  here  as  at  law, 
that  the  plea  admitting  the  bill  interposes  matter  which, 
if  true,  destroys  it,  and  upon  the  truth  of  which  the 
plaintiff  is  at  liberty  to  take  issue."  Boyle  v.  Adams,  6  Yes. 
jun.  594.  In  Wood  v.  Strickland,  2  Yes.  &  Beam,  the  Vice 
Chancellor  says,  upon  a  plea  found  false,  the  plaintiff  is  en- 
titled to  a  decree.  In  Bogardus  v.  Trinity  Church,  4  Page 
178,  where  issue  is  taken  upon  a  plea,  if  the  truth  of  the 
matters  pleaded  is  established,  the  suit  will  be  barred,  so 
far  as  the  plea  extends.  In  Dows  v.  McMichael,  6  Page 
144,  the  plea  was,  that  D.  and  D.  were  members  of  the 
firm  of  B.  N.  &  Co.,  at  the  time  the  note  was  given,  and 
were  jointly  liable  with  the  defendants  in  the  suit  in  the 
Supreme  Court  for  the  payment  thereof,  as  a  copartner- 
ship debt ;  that  the  judgment  had  been  fully  paid  and  satis- 
fied by  D.,  one  of  the  members  of  D.  &  D.,  before  the  re- 
turn of  the  execution  issued  thereon,  and  that  this  suit  was 
prosecuted  for  the  sole  benefit  of  D.,  who  paid  the  judg- 
ment, the  complainants  having  no  beneficial  interest  there- 
in ;  and  that  the  amount  so  paid  by  D.  was  no  more  than 
his  proportion  of  his  debts  due  from  the  firm  at  the  time 
of  such  payment.  The  case  is  very  similar  to  the  one  be- 
fore the  court.  In  deciding  that  case,  the  Chancellor  said : 
Xo  repleader  is  awarded  in  this  court  upon  an  immaterial 
issue  joined  upon  a  plea.  The  court,  therefore,  never  in- 
quires as  to  the  materiality  of  the  allegations  contained 
in  the  plea  in  such  a  case.  If  the  truth  of  the  plea  is 
established  by  the  proofs,  the  complainant's  bill  must  be 
dismissed,  although  the  matters  stated  in  the  plea  con- 
tain, in  fact,  no  valid  defence  to  the  suit.  On  the  other 
hand,  if  the  defendant  fails  in  proving  the  truth  of  his 
plea  Hpon  the  hearing,  the  plea  must  be  overruled  as 
false,  and  the  complainant  will  be  entitled  to  a  decree  ac- 
cording to  his  case,  as  stated  in  the  bill.  And  the  same 
case  is  reported  in  2  Paige  345.  See,  also,  Story*  y  Ey.,  J., 
VOL.  ii.  ii 


86  CASES  IN  CHANCERY. 

Hornor  v.  Leeds. 

§  697  ;  Brownsword  v.  Edwards,  6  Ves.  Rep.  247  ;  Meeker 
v.  Marsh,  executor  of  Butler,  Saxtorfs  C.  R.  198. 

The  plea  is  overruled,  and  the  complainant  is  entitled  to 
a  decree  according  to  the  case  made  by  his  bill. 

CITED  in  Damson  v.  Johnson,  1  C.  E.  Gr.  113. 


JOHN  HORNOR  vs.  ROBERT  B.  LEEDS  et  al. 

Where  an  injunction  has  been  dissolved  for  want  of  equity  in  the  bill,  the 
court  will  not  grant  an  exparte  injunction  upon  an  amended  bill,  or  upon 
a  new  bill  supplying  that  equity. 


On  motion  to  dissolve. 
W.  Halstead,  for  motion. 
Carpenter  and  Browning,  contra. 

THE  CHANCELLOR.  On  the  12th  of  September  last,  upon 
a  bill  filed  by  this  same  complainant  against  these  same 
defendants,  an  injunction  issued,  similar  in  every  respect 
to  the  injunction  issued  in  the  present  suit.  Both  injunc- 
tions restrained  the  defendants  from  exercising  any  acts 
of  ownership  over  and  upon  certain  tracts  of  land,  at  and 
near  Absecom  Beach,  in  the  county  of  Atlantic,  and  en- 
joined Robert  B.  Leeds  from  further  prosecuting,  until 
otherwise  ordered,  a  certain  action  of  ejectment  against 
the  complainant,  John  Hornor.  The  ejectment  suit  was 
commenced  in  September  term,  1852,  of  the  Atlantic  Cir- 
cuit Court.  In  the  following  December  term  of  that 
court,  the  cause  was  set  down  for  trial,  and  was  post- 
poned, on  the  application  of  the  complainant :  and  again, 
in  the  April  term  then  next  of  that  court,  the  trial  was 
further  postponed,  on  the  affidavit  and  application  of  the 
complainant.  The  cause  was  then  noticed  for  the  Septem- 
ber term  of  the  Circuit  Court,  which  commenced  on 
Tuesday,  the  thirteenth  of  that  month.  On  the  12th  of 
September,  the  day  before  the  cause  was  to  have  been 


FEBRUARY  TERM,  1854.  87 


Hornor  v.  Leeds. 


tried,  the  complainant  filed  his  first  bill,  and  upon  appli- 
cation to  one  of  the  injunction  masters,  obtained  the  first 
injunction  before  referred  to.  The  fact,  that  the  eject- 
ment suit  had  been  then  pending  for  a  year,  did  not  ap- 
pear by  the  bill.  The  time  of  its  commencement,  and 
the  cause  of  its  delay,  was  concealed.  The  impression 
produced,  and  without  doubt  intended  to  be  produced, 
by  the  statement  in  the  bill  respecting  the  suit,  was, 
that  it  had  been  then  lately  commenced ;  want  of  dili- 
gence in  filing  his  bill,  from  anything  apparent  in  it, 
could  not  be  imputed  to  the  complainant.  On  a  hearing 
before  the  Chancellor,  the  injunction  was  dissolved  for 
the  want  of  equity  in  the  bill.  The  ejectment  suit  was 
then  noticed  for  trial  for  the  13th  day  of  Decembor  last. 
On  the  12th  of  December  an  order  was  made,  upon  the 
complainant's  application,  dismissing  his  bill  with  costs. 
On  the  same  day,  the  complainant  filed  the  present  bill, 
and  applied  to  the  master  for  an  injunction.  He  produced 
before  the  master  the  usual  affidavit  as  to  the  truth  of  the 
matters  contained  in  the  bill,  with  an  additional  state- 
ment, in  the  affidavit,  that  the  former  bill  was  dismissed 
for  certain  informalities,  which  he  was  advised  were  all 
remedied  in  the  present  bill  of  complaint. 

This  allegation,  upon  which  the  master  was  induced  to 
grant  the  injunction,  was  neither  technically  nor  substan- 
tially correct.  The  bill  was  not  dismissed  for  any  infor- 
mality, but  upon  the  complainant's  own  motion,  upon  the 
usual  terms.  The  injunction  was  dissolved  for  want  of 
equity ;  but  the  bill  was  retained,  and  the  complainant 
was  at  liberty  to  amend,  if  he  had  seen  proper  to  do  so. 
It  is  manifest  that  the  order  to  dismiss  the  bill  was  pro- 
cured to  clear  the  way  for  the  application  to  the  master. 
The  master,  had  he  been  'correctly  advised  of  the  fact, 
that  the  court  had  dissolved  the  prior  injunction  for  want 
of  equity  in  the  bill,  would  never  have  allowed  this  in- 
junction upon  an  affidavit  of  the  complainant,  that  the 
present  bill  remedied  the  defects  of  the  first  bill.  The 


88  CASES  IN  CHANCERY. 

Nicholls  v.  O'Neill. 

complainant  is  not  the  proper  judge  whether  his  bill  con- 
forms to  an  opinien  of  the  court,  before  expressed  upon 
the  merits  of  his  case,  and  it  would  never  do  to  place  any 
reliance  upon  such  a  sworn  allegation  of  the  party  in- 
terested. It  is  not  an  affidavit  as  to  a  fact,  but  as  to  the 
party's  opinion  only,  upon  the  extent  and  effect  of  the 
judgment  of  the  court  upon  his  case.  He  has  nothing  to 
fear  from  any  legal  consequences  of  such  an  oath,  if  it  is 
founded  in  error ;  and  as  to  any  moral  turpitude,  his  con- 
science may  be  easily  quieted  by  the  advice  of.  too  san- 
guine counsel. 

But  I  shall  order  this  injunction  dissolved  upon  broader 
ground  than  this.  I  lay  down  the  rule,  that  where  an  in- 
junction has  been  dissolved  for  want  of  equity  in  the  bill, 
this  court  ought  not  to  grant  an  ex  parte  injunction  upon 
an  amended  bill,  or  upon  a  new  bill,  supplying  that 
equity.  If  a  complainant  is  willing  to  swear  to  a  case 
fitting  the  opinion  of  the  court,  the  rights  of  a  defendant 
should  not  be  interfered  with  upon  such  a  bill,  without 
affording  the  defendant  an  opportunity  of  being  first 
heard.  Any  other  practice  would  be  oppressive,  and 
would  place  the  interest  and  rights  of  a  party  too  much  in 
the  power  of  his  adversary. 

I  have  not  thought  it  necessary  to  look  for  the  equity 
in  this  bill.  I  am  satisfied  to  dissolve  the  injunction,  for 
the  reasons  stated. 


C.  L.  NICIIOLLS  and  others  vs.  JOHN  O'NEILL  and  wife, 
and  others. 

The  interest  which  the  husband  acquires  in  the  wife's  inheritance  is  subject 
to  judgment  and  execution  against  the  husband.  Husband  and  wife  are 
jointly  seized  in  right  of  the  wife. 


A.  B,  Woodruff,  for  complainant. 

B.  Barcalow,  for  defendant. 


FEBRUARY  TEEM,  1854.  89 


Nicholls  v.  O'Neill. 


THE  CHANCELLOK.  The  bill  is  filed  on  a  mortgage  ex- 
ecuted by  John  O'Neill  and  Susan  his  wife  to  the  com- 
plainants, and  prays  a  sale  of  the  mortgaged  premises,  to 
pay  the  debt  which  it  was  given  to  secure.  John  E.  Ross, 
William  S.  Main,  and  Bielbe  P.  Parke  are  made  defend- 
ants to  the  bill,  by  reason  of  their  holding  a  judgment 
obtained  against  John  O'Neill  prior  in  time  to  the  date  of 
the  complainants'  mortgage. 

The  complainants  contend  that  this  judgment  is  not  a 
lien  on  the  mortgaged  premises. 

First.  They  insist  it  is  no  lien,  because  Susan  O'Neill 
was  seized  in  fee  of  the  mortgaged  premises  by  descent 
from  •  her  father ;  that  she  was  never  married  to  the  de- 
fendant, John  O'Neill,  and,  consequently,  the  judgment 
being  against  John  O'Neill,  it  is  no  lien  upon  this  pro- 
perty. How  is  it  possible  that  such  a  question  can  arise 
out  of  these  pleadings  ?  Not  only  is  it  not  made  an  issue 
by  the  pleadings,  but  the  complainants  are  estopped  by 
their  bill  from  questioning  the  fact.  The  bill  alleges  that 
the  mortgage  was  executed  by  O'Neill  and  his  wife,  and 
to  secure  his  debt,  and  the  prayer  of  the  bill  is,  that  their 
respective  rights,  as  husband  and  wife,  in  the  premises 
may  be  foreclosed.  Notwithstanding  this  position  of  the 
cause  by  the  pleadings,  the  suit  has  been  delayed,  and  the 
controversy  protracted,  and  great  expense  incurred,  by 
these  complainants  and  judgment  creditors,  in  contest- 
ing this  question  with  as  much  earnestness  as  if  the  case 
depended  upon  it.  As  the  mortgagors  had  no  part  in 
making  the  expense  of  investigating  this  question,  I  can- 
not permit  the  costs  incurred  in  examining  witnesses  on 
this  point  to  be  raised  out  of  the  mortgaged  premises. 
The  parties  must  have  had  some  other  object  in  view  than 
the  mere  bearing  of  the  fact  upon  the  issue  of  this  cause. 
If  not,  and  it  was  mere  curiosity,  it  is  right  that  they 
themselves  should  be  at  the  expense  of  it. 

Second.  The  complainants  insist  that  the  judgment  is 
no  lien,  because  O'Neill,  as  the  husband  of  Susan,  had 


90  CASES  IN  CHANCEKY. 

Nicholls  v.  O'Neill. 

no  such  estate  in  the  mortgaged  premises  as  the  judg- 
ment could  be  a  lien  upon.  The  bill  alleges  that  the  said 
tracts  or  lots  of  land  came  to  the  said  Susan  O'Neill  by 
descent  from  her  father,  and  that  the  said  lots  were  the 
property  of  the  said  Susan  exclusively,  and  charges  that 
the  interest  the  said  Susan  O'Neill  had  in  the  said  lots, 
at  the  date  of  the  recovery  of  the  said  judgment,  or  at  any 
time  since,  was  only  the  possibility  of  becoming  tenant 
by  the  curtesy  of  the  said  lots  in  case  of  the  death  of  the 
said  Susan,  and  that,  therefore,  the  judgment  is  no  lien 
upon  the  land. 

The  fact,  that  the  mortgaged  premises  were  the  inher- 
itance of  the  wife,  is  not  denied  by  the  answer ;  but  the 
law  arising  upon  that  fact,  as  assumed  by  the  answer,  is 
controverted. 

The  position  taken  on  behalf  of  the  complainants  is  mani- 
festly erroneous.  It  is  true  the  estate  of  the  husband,  as 
tenant  by  the  curtesy,  is  consummate  only  upon  the  death 
of  the  wife,  but  his  estate  is  initiate  on  issue  had.  Some 
question  was  made  as  to  the  wife's  having  "  issue."  The 
counsel  insisted  that  if  she  had  no  issue,  then  the  husband 
was  seized  of  no  estate  which  could  be  sold  under  judg- 
ment and  execution.  But  if  any  question  is  well  settled 
by  authority,  it  is,  that  the  interest  which  the  husband 
acquires  in  the  wife's  inheritance  is  subject  to  judgment 
and  execution  against  the  husband.  The  husband  is  not 
solely  seized,  but  is  seized  jointly  with  the  wife.  The 
technical  phraseology  of  the  common  law  is,  "  that  hus- 
band and  wife  are  jointly  seized  in  right  of  the  wife." 
This  estate  the  husband  may  dispose  of  without  the  con- 
sent of  the  wife.  By  a  deed  of  bargain  and  sale,  he  may 
create  an  estate  of  freehold  in  the  wife's  inheritance  with- 
out her  consent  or  her  uniting  in  the  conveyance.  What- 
ever estate,  then,  O'Neill  had  in  the  inheritance  of  his 
wife  is  subject  to  the  defendant's  judgment,  and  as  far  as 
that  interest  extends,  the  judgment  has  priority  over  the 
mortgage.  The  mortgage  is  a  lien  upon  the  whole  estate, 


FEBRUARY  TERM,  1854.  91 


Andrews  v.  Famharu. 


both  upon  the  inheritance  of  the  wife,  and  the  estate  of 
the  husband  therein.  The  judgment  is  a  lien  only  upon 
the  estate  of  the  husband. 

But  it  was  further  insisted  that,  as  between  the  mort- 
gage and  judgment,  the  mortgage  has  priority,  because 
no  execution  was  levied  upon  the  lands  prior  to  the  exe- 
cution of  the  mortgage.  As  between  two  judgement  credi- 
tors, the  one  making  the  first  levy  has  priority  by  virtue- 
of  the  statute ;  but  the  statute  does  not  postpone  a  judg 
ment  to  the  mortgage,  because  the  mortgage  was  executed 
prior  to  execution  levied. 

Let  there  be  reference,  and  an  account  taken  upon  the 
judgments  and  mortgages,  and  let  the  property  be  sold, 
and  the  money,  be  brought  into  court,  that  the  rights  of  the 
several  parties  to  the  proceedings  may  be  ascertained  and 
adjusted. 


AMELIA  ANDREWS  vs.  HIRAM  FARNHAM  and  JOEL   SMITH. 

Where  a  bill  claims  the  execution  of  a  resulting  trust,  the  facts  from  which 
it  alleges  the  trust  results  must  bo  proved.  A  complainant  cannot  make 
one  case  by  his  bill,  and  having  failed  to  prove  it,  abandon  it,  and  recover 
upon  a  different  one  established  by  the  evidence. 


On  bill  and  cross-bill. 

S.  Cassidy  and  Dickinson,  for  complainant. 

T.  Runyon,)  for  Farnham. 

A.   Whitchead,  for  Joel  Smith. 

THE  CHANCELLOR.  The  complainant  exhibited  her  bill 
against  Hiram  Farnham,  to  compel  him  to  execute  a  trust 
in  her  favor  respecting  certain  lands  in  the  county  of 
Essex,  in  this  state.  Joel  Smith  holds  a  mortgage  on  the 
property  of  $3000,  executed  to  him  by  Farnham.  The 
complainant  alleges,  that  Smith  took  the  mortgage  with 


CASES  IN  CHANCERY. 


Andrews  v.  Farnham. 


full  knowledge  of  tl'ie  facts;  that  it  is  fraudulent,  as 
against  her,  and  should  be  declared  void  as  a  lien  upon 
the  land.  Joel  Smith  filed  his  cross-bill  to  foreclose  the 
rights  of  the  defendants  in  the  mortgaged  premises,  and 
to  have  them  sold  to  pay  his  mortgage.  Both  suits  have 
been  brought  to  a  final  hearing  upon  the  pleadings  and 
proofs.  If  the  original  bill  is  not  sustained,  Smith  is  en- 
titled to  a  decree  upon  the  cross-bill. 

The  original  bill  alleges,  that  previous  to,  and  at  the 
time  of  the  complainant's  marriage  with  her  husband, 
Philo  Andrews,  who  is  deceased,  she  was  seized  and  pos- 
sessed, in  her  own  right,  of  certain  real  estate  in  the 
county  of  Burlington,  and  that  at  the  time  of  their  mar- 
riage it  was  agreed  between  her  and  her  husband,  that  in 
case  of  any  sale  of  the  said  real  estate,  the  proceeds 
thereof  should  be  invested  in  other  real  estate  for  her  sole 
benefit,  and  so  with  any  future  investment  of  such  pro- 
ceeds ;  that  some  time  after  her  marriage  she  sold  the 
Burlington  estate,  and  invested  the  proceeds  in  real  estate 
in  the  city  of  New  York;  that  subsequently  she  ex- 
changed the  estate  in  New  York  for  the  farm  in  question 
in  Essex  county,  and  afterwards,  by  the  advice  of  her  hus- 
band, and  for  the  purpose  of  keeping  the  same  free  of  all 
claim  or  charge  of  her  husband,  the  farm  was  conveyed 
to  one  James  Madison  Wells,  who  took  the  deed  in  his 
own  name,  but  to  hold  in  trust  for  the  complainant ;  that 
then  Philo  Andrews  saw  fit,  from  the  circumstances  arising 
from  the  situation  of  Wells,  to  take  from  him  a  deed  for 
the  farm  in  his  own  name,  and  finally,  on  the  10th  of. 
April,  1837,  the  complainant  and  her  husband  conveyed 
to  the  defendant,  Hiram  Farnham ;  that  although  the  said 
deed  is  absolute  on  its  face,  yet  the  said  Farnham  was 
told,  and  he  understood,  that  the  farm  was  to  be  held  by 
him  in  trust  for  the  complainant,- until  such  time  as  she 
should  choose  to  dispose  of  the  same. 

Farnham  expressly  denies  the  trust,  and   puts   in   issue 
every  allegation  of  the  bill  from  which  such  a  trust  could 


FEBRUARY  TERM,  1854.  93 


Andrews  r.  Farnhanx 


be  implied.  The  complainant  has  entirely  failed  to  prove 
that  she  ever  owned  any  estate  in  her  own  right,  or  that 
the  property  in  question  was  purchased  with  her  money, 
or  with  funds  the  proceeds  of  any  property  which  be- 
longed to  her.  The  only  fact  in  the  case,  from  which  a 
trust  of  any  kind  could  be  implied,  is,  that  the  convey- 
ance to  Farnham  was  a  voluntary  conveyance,  for  which 
no  moneyed  consideration  passed  from  him.  But  a  trust 
resulting  from  that  circumstance  would  be  in  favor  of  the 
grantors.  The  property  was  conveyed  to  Farnham  by  the 
complainant  and  her  husband  Philander  Andrews;  and 
she  can  no  more  claim  the  benefit  of  a  resulting  tmst  in 
her  favor  from  that  conveyance  than  could  an  entire 
stranger  to  it. 

But  the  compkinant  produced  in  evidence  a  paper 
writing,  purporting  to  be  signed  by  Hiram  R.  Farnham, 
bearing  date  about  the  time  of  the  execution  of  the  deed, 
which  on  its  face  is  a  declaration  of  trust.  It  is  as  follows  : 
"  This  may  certify  that  I  have  taken  into  my  possession 
the  farm  on  which  I  now  live,  to  hold  in  confidential 
secret  trust  for  Amelia  Andrews  ;  and  as  consideration 
for  rent,  I  am  to  keep  the  said  farm  in  good  condition 
and  repair,  and  Philo  Andrews,  Amelia  Andrews,  and 
Caroline  are  to  have  with  myself  upon  the  farm,  at  any 
and  all  times  that  may  suit  their  convenience,  a  home, 
and  Caroline  is  to  be  treated  as  one  of  my  family.  The 
above  farm  was  formerly  owned  by  Abraham  Reynolds, 
and  exchanged  for  property  in  the  city  of  New  York,  for- 
merly held  in  trust  by  McNeil  Seymour  for  Amelia  An- 
drews. The  above  farm  is  to  be  conveyed  at  any  time, 
subject  to  the  order  of  Amelia  Andrews  or  that  of  her 
husband  and  agent  Philo  Andrews." 

This  writing  is  not  alluded  to  in  any  way  in  the  bill, 
nor  is  any  reference  made  to  it  in  the  answer  of  Amelia 
Andrews  to  the  cross-bill  of  Joel  Smith,  although  she 
was  called  upon  by  that  bill  to  disclose  the  nature  of  the 
trust.  Why  this  paper  was  kept  out  of  view  in  the  plead- 
ings, is  not  explained  by  anything  appearing  in  the  case. 


94  CASES  IN  CHAJSTCEKY. 

Andrews  v.  Farnham. 

In  the  argument  counsel  attempted  to  excuse  this  very 
singular  omission  by  stating  that  the  paper  had  been  lost, 
and  was  discovered  only  after  the  pleadings  were  com- 
pleted. But  the  loss  of  such  a  paper,  instead  of  furnish- 
ing any  reason  or  excuse  for  concealing  it,  made  it  the 
more  necessary  and  important  to  call  iVpon  Farnham  for 
a  discovery  of  its  contents.  The  concealment  of  the  paper 
by  the  complainant,  its  production  only  when  the  com- 
plainant's case  had  become  utterly  hopeless  without  a  re- 
liance upon  some  better  evidence  of  a  trust  than  she  had 
until  then  been  able  to  produce,  the  obligations  upon  the 
face  of  the  paper,  and  the  fact  that  its  genuineness  has  been 
very  seriously  questioned,  all  these  circumstances  produce  a 
very  unfavorable  impression  against  the  complainant's  case. 
If  this  paper  is  genuine,  does  it  help  the  complain- 
ant ?  By  her  bill,  she  claims  the  execution  of  a  re- 
sulting trust.  She  has  failed  to  prove  the  facts  from 
which  she  alleges  the  trust  results.  This  paper  is  admis- 
sible as  evidence  for  no  other  purpose  than  to  prove  the 
trust  set  out  in  the  bill.  If  it  proves  the  facts  from  which 
that  trust  results,  it  may  be  competent  for  such  purpose. 
The  counsel  of  the  complainant  admitted  that  the  paper 
did  not  establish  the  trust  alleged  in  the  bill,  but  con- 
tended that  it  did  prove  the  fact  that  Farnham  held  the 
property  in  trust  for  Amelia  Andrews,  and,  therefore,  the 
court  ought  to  establish  such  trust.  A  complainant  can- 
not make  one  case  by  his  bill,  and,  having  failed  to  prove 
it,  abandon  it,  and  recover  upon  a  different  one  esta- 
Ibjished  by  the  evidence.  The  rule  is  not  a  technical  one. 
Without  it  the  pleadings  are  useless.  The  propriety  of  it 
is  manifest  in  this  case.  If  this  declaration  of  trust  had 
'been  made  the  foundation  of  the  suit,  the  issue  between 
the  parties  would  have  been  entirely  different  from  that 
made  by  their  pleadings.  This  paper  is  a  naked  declara- 
tion of  trust.  If  the  complainant  relied  upon  it,  the  de- 
fendant should  have  had  the  opportunity  of  making  an 
issue  upon  that  paper.  This  has  been  denied  him.  The 
trust  upon  .which  the  complainant  relied  in  her  bill  was 


FEBRUARY  TERM,  1854. 


Andrews  r.  Farnliani. 


one  which,  if  established,  the  court  would  have  executed. 
Having  failed  to  establish  that  trust,  she  cannot  resort  to 
another.  I  think  it  unnecessary  to  examine  the  question, 
whether  the  signature  of  Hiram  Farnham  to  the  paper  in 
question  is  genuine  ?  It  is  worthy  of  remark,  in  connec- 
tion with  this  question,  that  the  complainant  had  two  op- 
portunities, in  her  bill  and  in  her  answer  to  the  cross-bill, 
to  affirm  under  oath  her  belief  in  the  genuineness  of  that 
paper.  Her  omission  to  do  so,  to  say  the  least  of  it,  looks 
suspicious.  I  am  of  opinion  tliat,  even  with  the  aid  of  that 
paper,  the  complainant  has  failed  to  prove  her  case.  There 
is  still  another  aspect  of  the  case  unfavorable  to  the  com- 
plainant's claim.  The  paper  produced  states  that  the  trust 
is  a  secret  confidential  trust,  and  the  evidence  shows  that  it 
was  for  years  kept  a  family  secret,  if  it  ever  existed.  Farn- 
ham lived  upon  tlie  farm,  worked  it,  improved  it,  and  used 
it  as  his  own.  He  was  the  reputed  absolute  owner  of  it 
among  his  neighbors,  and  Philo  Andrews  or  his  wife  never 
interfered  with  liis  claim  as  owner.  The  bill  alleges  that  the 
property  was  conveyed  for  the  purpose  of  keeping  the  same 
free  from  all  claim  or  charge  of  her  husband,  and  it  shows 
that  the  property  stood  in  the  name  of  several  different  in- 
dividuals in  the  course  of  a  few  years.  AYhy  the  trust  was 
to  be  secret,  and  why  it  was  concealed,  is  not  attempted  to 
be  explained.  It  is  shown  that,  in  less  than  three  months 
after  the  deed  to  Farnham,  a  judgment  was  recorded  in  the 
Essex  Pleas  against  Philo  Andrews  for  upwards  of  four 
hundred  dollars,  and  remains  still  unsatisfied.  It  is  very 
clear,  from  the  whole  evidence,  that  unless  the  farm  was 
conveyed  to  Farnham  bona  fide,  as  he  states  in  his  answer, 
the  conveyance  was  a  fraudulent  one,  and  was  made  for  the 
purpose  of  defrauding  the  creditors  of  Philo  Andrews.  The 
original  bill  is  dismissed  with  costs.  The  complainant  in 
the  cross-bill  is  entitled  to  a  reference  to  a  master,  to  take 
an  account  of  what  is  due  on  his  mortgage,  to  a  decree  of 
foreclosure  and  sale  of  the  mortgaged  premises. 

CITED  t»  Midmer  v.  Midmer's  Exr'.i.,  11  C.  E.  Gi:  303  ;  Search's  Adm'r. 
v.  Search's  Admrs,  12  C.  E.  Or.  133;  Wilton's  Exr's.  v.  CoWs  Exr'9.,  1 
Stew.  179. 


90  CASES  IN  CHANCERY. 

Farley  v.  Woodburn. 

AAEON  S.  FARLEY  and  others  vs.  HENRY  WOODBURN  and 

others. 

A  testator  at  his  death  left  a  widow,  since  deceased,  and  three  minor  children. 
His  widow  took  a  life  estate  only  in  the  land  and  premises  under  his  will. 
Some  years  after  the  death  of  testator,  his  widow  conveyed  the  premises 
in  question  to  a  trustee,  in  trust  for  the  benfit  of  her  minor  children,  with 
power  to  dispose  of  and  convey  the  same  to  the  best  advantage.  The  trus- 
tee sold  the  premises,  and  the  possession  of  the  premises  had  since  followed 
his  conveyance.  The  court  refused  to  enjoin  the  minor  children  from 
prosecuting  an  action  of  ejectment,  or  to  order  them  to  execute  convey- 
ances or  releases,  as  there  was  no  evidence  that  they,  after  arriving  at  age, 
had  assented  to  the  sale,  or  received  any  consideration  for  it. 

The  trustee  who  had  given  a  warranty  deed  for  the  land,  and  remained 
liable  upon  it,  was  excluded  as  a  witness  on  account  of  interest. 


G.  A.  Atten,  for  complainant. 
A.  Wurts,  for  defendant. 

THE  CHANCELLOR.  The  will  of  Henry  "Woodburn  is  not 
set  out  at  length  in  the  bill,  nor  has  it  been  made  an  ex- 
hibit in  the  cause  by  any  of  the  parties.  The  complain- 
ants, however,  admit  that,  by  the  will,  Sarah  Woodburn, 
the  widow  of  Henry  Woodburn,  took  only  a  life  estate  in 
the  land  and  premises.  This  is  undoubtedly  so,  if  the 
clause  of  the  will  given  in  the  bill  is  the  only  part  of  the 
will  bearing  upon  that  question.  Henry  Woodburn,  at 
his  death,  -left  a  widow,  since  deceased,  and  three  children, 
Henry,  aged  six  years,  Catharine,  aged  four  years,  and 
Jacob,  aged  six  months,  which  children,  with  Tunis  Case, 
the  husband  of  Catharine,  are  the  defendants  in  this  suit. 

Some  years  after  the  death  of  the  testator,  his  widow, 
Sarah  Woodburn,  conveyed  the  premises  in  question  to 
one  Jacob  C.  Apgar,  in  trust  for  the  benefit  of  her  minor 
children,  with  power  to  dispose  of  and  convey  the  same 
to  the  best  advantage.  On  the  first  of  April,  1831,  Jacob 
C.  Apgar  sold  and  conveyed  the  premises  to  Minard  Far- 
ley, for  the  sum  of  $200.  The  possession  of  the  premises 


FEBRUAEY  TEEM,  1854:.  97 

Farley  v.  Woodburn. 

lias  since  followed  tliis  conveyance.  After  arriving  at  age, 
Catharine  and  Jacob  conveyed  their  interest  in  the  land  to 
their  brother,  Henry  Woodburn.  The  bill  alleges  that, 
after  the  defendants  came  of  age,  Jacob  C.  Apgar  paid 
them  the  consideration  money  he  had  received  for  the  land, 
and  that  they  accepted  the  same  in  payment.  Henry 
Woodburn  commenced  an  action  of  ejectment,  and  the 
complainants,  who  are  the  heirs  at  law  of  Minard  Farley, 
filed  this  bill  to  enjoin  Henry  Woodburn  from  further 
prosecuting  his  suit.  The  bill  prays  that  the  defendants 
may  be  decreed  to  execute  to  the  complainants  good  and 
sufficient  releases  and  conveyances  for  the  said  land  and 
premises,  or,  if  more  equitable,  that  they  be  decreed  to 
refund  and  return  to  the  complainants  the  several  sums 
of  money  each  has  received  in  payment  for  the  land.  In 
considering  the  case,  the  testimony  of  Jacob  C.  Apgar 
must  be  laid  out  of  view.  He  is  not  a  competent  witness- 
He  gave  to  Farley  a  warranty  deed  for  the  land.  He  is 
liable  upon  that  warranty,  and  must  be  excluded  as  a  wit- 
ness on  account  of  interest. 

As  to  Catharine  and  Jacob,  there  is  no  evidence  that 
they,  or  either  of  them,  after  arriving  at  age,  in  any  way 
assented  to  the  sale  of  the  land,  or  received  any  considera- 
tion for  it.  There  is  not  the  slightest  ground  for  the  court's 
interfering  with  their  interest  in  the  land  or  making  a  de- 

O 

cree  against  them. 

As  to  William,  he  admits,  in  his  answer,  that  several 
years  after  he  was  of  age,  in  settlement  of  accounts  be- 
tween himself  and  Apgar,  Apgar  gave  him  a  note  of  hand 
for  $205,  and  that  when  he  handed  him  the  note,  said  to 
him,  that  this  note  included  his  share  of  the  land.  He 
says  that  no  explanation  was  made  to  him  as  to  the  sale, 
or  its  terms ;  and  that,  at  that  or  any  other  time,  Apgar 
did  not  give  any  further  explanation  upon  the  subject.  A 
balance  on  this  note,  more  than  equal  to  what  William 
Washburn  was  entitled  to  for  his  interest  in  the  land,  still 
remains  unpaid.  Apgar  is  insolvent. 

VOL.  ii.  i 


98  CASES  IN  CHANCERY. 

Obert  v.  Obert. 

The  evidence  makes  no  stronger  case  against  William 
than  this  admission  in  his  answer.  The  declarations  he  is 
proved  to  have  made  amount  to  no  more.  The  case,  as  it 
is  made  by  the  bill,  is  not  a  strong  one,  and  the  proofs  taken 
fall  very  far  short  of  sustaining  the  bill. 

The  bill  must  be  dismissed  with  costs. 


THROOKMOETON  OBEET  vs.  PETER  G.  OBERT  and  others. 

A  complainant  may  have  partition  and  an  account  by  the  same  bill. 

Although  an  ejectment  suit  does  not  conclude  the  parties  from  further  inves- 
tigation, tins  court  will  look  at  the  questions  which  were  really  involved 
in  that  suit ;  and  if  the  legal  question  as  to  the  title,  which  is  raised  by  the 
bill,  was  decided  by  the  court  of  law,  and  the  party  had  by  the  judgment 
and  process  of  the  court  been  put  in  possession,  this  court  cannot  require 
better  proof  of  legal  title. 

Ou  a  bill  for  partition,  if  the  title  is  denied,  and  there  are  serious  doubts 
raised,  the  court  will  not  order  the  commission:  nor  will  it  dismiss  the  bill, 
but  will  retain  the  bill,  and  afford  the  complainant  an  opportunity  to  es- 
tablish his  title  at  law. 

This  court  is  not  the  proper  tribunal  to  try  the  legal  title  to  land,  but  it  is  its 
peculiar  province  to  determine  questions  of  fraud,  and  to  set  aside  fraudu- 
lent conveyances  interposed  to  defeat  the  legal  title. 

The  fact  that  a  purchaser  at  an  administrator's  sale  was  a  man  of  no  means, 
that  on  the  same  day  the  administrator  conveyed  the  property  to  him,  he 
reconveyed  it  to  the  administrator,  is  sufficient  proof,  without  any  explana- 
tion of  the  transaction,  that  the  purchase  was  made  for  the  benefit  of  the 
administrator. 

The  deed  in  such  cases  is  violable. 

See  Scott  v.  Gamble  and  wife,  1  Stock.  235,  and  Mulford  v.  Bowens.    Ib.  797. 


M.  Y.  Speer,  for  complainant. 

C.  /S.  Scott  and  J.  W.  Scott,  for  defendants. 

THE  CHANCELLOR.  The  object  of  the  bill  is  for  parti- 
tion. It  alleges,  also,  that  some  of  the  defendants  have 
been  in  possession  for  a  number  of  years,  and  prays  an 
account.  It  is  objected  that  the  bill  is  incongruous,  and 


FEBRUAEY  TEEM,  1854. 


Obert  v.  Obert. 


that  a  complainant  cannot  have  partition  and  an  account 
by  the  same  bill.  I  can  see  no  objection  to  the  bill  for 
the  reason  alleged.  There  are  numerous  authorities  for 
it.  I  do  not  know  that  the  matter  was  ever  questioned. 
In  Tuckjield  et  ux.  v.  Buller  and  son,  1  Dickens  241,  the 
bill  alleged  that  Buller  the  elder  had  got  into  possession  of 
the  estate,  and  cut  down  timber ;  the  bill,  besides  pray- 
ing partition,  prayed  an  account,  &c.  In  Wills  v.  Slade, 
6  Ves.  488,  the  decree  was  made  for  an  account,  and  a 
commission  for  partition  between  the  plaintiffs  and  de- 
fendants, according  to  the  prayer  of  the  bill.  In  Turner 
v.  Morgan,  8  Yes.  143,  the  bill  was  for  partition  and  ac- 
count. A  question  arose  as  to  the  mode  of  taking  the 
account,  but  no  doubt  was  expressed  as  to  the  propriety 
of  the  bill.  It  seems  to  be  in  conformity  to  precedents. 
Also  Agar  v.  Fairfax,  17  Ves.  533.  The  complainant 
may  properly  include  in  his  bill  an  account  for  rent,  for 
timber  cut,  and  for  improvements.  It  has  always  been 
the  practice,  and  I  know  of  no  authority  or  good  reason  to 
the  contrary. 

The  only  serious  question  involved  is,  as  to  the  title  of 
the  respective  parties.  The  defendants  insist  that  the 
complainant  has  no  title.  Peter  G.  Obert  disclaims,  by 
his  answer,  any  interest.  William  Simpson  claims  title  to 
the  whole  property.  The  other  parties  to  the  suit  have  not 
answered. 

As  to  the  complainant's  title  to  the  one-twentieth,  which 
lie  claims  by  descent  from  his  grandfather,  I  think  it  is 
very  clear.  It  has  been  tried  at  law,  and  the  character 
and  result  of  the  trial  is  satisfactory  as  to  the  title.  It  is 
true  it  was  an  ejectment  suit,  which  does  not  conclude 
the  parties  from  further  investigation.  But  this  court  will 
look  at  the  questions  which  were  really  involved  in  that 
suit;  and  if  the  legal  question  as  to  the  title,  which  ia 
raised  on  this  bill,  was  decided  by  the  court  of  law,  and 
more  especially  if  the  party  was,  by  the  judgment  and 
process  of  the  court,  put  in  possession  under  his  title, 


100  CASES  IN  CHANCERY. 

Obert  v.  Obert. 

what  better  proof  of  legal  title  ought  this  court  to  require  ? 
If  the  title  is  denied,  and  there  are  serious  doubts  raised, 
the  court  will  not  order  the  commission,  nor  will  it  dis- 
miss the  bill ;  but  will  retain  the  bill,  and  afford  the  com 
plainant  an  opportunity  to  establish  his  title  at  law. 

Thus,  on  a  bill  for  writings  and  a  partition,  the  defendant 
insisted  that  the  plaintiff  had  no  title,  and  that  there  was 
an  entail  subsisting.  The  court  gave  plaintiff  a  year  to 
try  his  title,  and  in  ejectment  he  got  a  verdict.  The  cause 
came  upon  the  equity  reserved,  and  the  defendant  in- 
sisted he  ought  not  to  be  bound  by  one  trial  in  a  matter 
of  right  of  inlieritence,  sed  non  allocatur  being  a  decree 
only  for  partition.  The  reporter  adds,  tainen  quere  (JBlimen 
v.  JSrown,  2  Ver-n.  232).  But  in  this  case  I  have  no  doubt 
as  to  the  propriety  of  considering  the  trial  at  law  satisfac- 
tory and  conclusive.  The  title  set  up  by  the  plaintiff  was 
not  questioned.  It  was  the  same  title  alleged  in  his  bill. 
He  claims  under  George  Obert,  as  one  of  his  heirs  at  law. 
The  adverse  title  is  under  the  administrator  of  George 
Obert,  deceased,  who  sold  the  land  by  virtue  of  an  order 
of  the  Orphans  Court.  The  only  question  in  the  eject- 
ment was  as  to  the  validity  of  the  title  under  the  admin- 
istrator's deed.  The  court,  decided,  that  if  the  purchase 
was  made  by  the  administrator,  ^x?/'  interpositam  personam, 
it  was  invalid.  The  question  of  fact,  viz.,  whether  the 
purchase  was  made  in  fact  for  the  administrator,  though 
in  the  name  of  another,  was  submitted  to  the  jury.  The 
jury  found  in  the  affirmative,  and  judgment  was  rendered 
for  the  plaintiff.  He  was  put  in  possession,  and  then  filed 
his  bill.  His  possession  under  that  judgment  has  never 
been  disturbed.  It  would  be  oppressive  to  compel  the 
complainant  to  litigate  further  as  to  this  one-twentieth. 

But  the  complainant  claims  title  to  five-twentieths  more 
under  the  same  title,  but  not  as  the  heir  at  law  of  George 
Obert,  deceased.  He  claims  as  purchaser  under  other 
heirs.  Simpson  claims  the  whole  premises  under  the  ad- 
ministrator's deed.  The  complainant  insists  that,  having 


FEBEUAKY  TEEM,  1854.  101 


Obert  v.  Obert. 


been  put  in  possession  of  the  one-twentieth,  and  being 
entitled  at  the  time  to  six-twentieths  under  the  same  title, 
He  then  became  legally  seized  according  to  his  title  and 
the  extent  of  his  interest.  By  his  bill  he  alleges  he  was 
put  in  possession  of  one-twentieth,  and  does  not  allege 
that  he  has  enjoyed  an  actual  possession  of  any  greater 
interest.  But  it  is  not  necessary  to  determine,  for  the 
purposes  of  this  suit,  what  legal  protection  was  afforded 
to  any  additional  interest  the  complainant  might  have  had  in 
the  premises  by  his  possession  of  one-twentieth  under 
the  ejectment  suit. 

All  parties  who  have  any  interest  in  the  partition,  claim 
title  under  George  Obert.  The  complainant  purchased 
five-twentieths  under  George  Obert's  heirs.  The  validity 
of  this  title  is  not  controverted.  Simpson  claims  title  to 
the  whole  premises,  and  the  foundation  of  his  title  is  the 
administrator's  deed.  The  complainant  alleges  that  this 
deed  is  fraudulent,  because  there  was  actual  fraud,  and  for 
the  reason  that  while  the  property  was  struck  off,  and  the 
conveyance  made  to  David  Smith,  the  administrator  was 
the  real  purchaser,  and  the  purchase  was  for  his  benefit. 

Can  the  court  determine  this  question  in  this  suit  ?  and 
if  it  can,  how  does  the  administrator's  deed  affect  the  com- 
plainant's title,  and  what  are  the  equities  of  the  parties  ? 

It  is  true  this  is  not  the  proper  tribunal  to  try  the  legal 
title  to  land  ;  and  although  the  court  has  jurisdiction  for 
the  purpose  of  partition,  if  the  legal  title  is  drawn  in  ques- 
tion, the  court  will  not  determine  it.  But  the  court  has 
jurisdiction,  and  it  is  its  peculiar  province  to  determine 
questions  of  fraud,  and  to  set  aside  fraudulent  conveyances 
interposed  to  defeat  the  legal  title.  The  only  question 
involved  here  is,  as  to  whether  the  administrator  was  the 
real  purchaser  at  the  sale.  That  question  determined, 
the  law  is  plain,  and  it  requires  no  interposition  of  a  court 
of  law  to  make  its  proper  application  or  to  determine  its 
effect  upon  the  deed.  If  the  fact  is  clearly  established  by 
the  evidence,  the  court  will  determine  the  fact,  or  iu  case 

i* 


102  CASES  EN"  CHANCERY. 

Obert  v.   Obert. 

of  difficulty,  may  refer  the  question  to  the  proper  tribu- 
nal for  the  purpose.  This  is  a  very  different  question 
from  one  where  the  legal  construction  of  a  deed  or  of  a 
will  is  involved.  In  Coxe  and  others  v.  Smith  and  others,  4 
J.  C.  7?,  271,  which  was  a  bill  for  partition,  the  Chancel- 
lor says,  when  the  question  arises  upon  an  equitable  title 
set  up  on  the  part  of  the  defendants,  this  court  must  de- 
cide the  title,  for  equitable  titles  belong  pecuriarly  to  this 
court,  and  the  parties  cannot  be  sent  to  law.  The  com- 
plainant does  not  deny  the  authority  of  the  court  to  order 
the  sale,  or  the  right  of  the  administrator  to  make  sale 
and  convey  the  land  under  the  order ;  but  he  alleges  that 
the  deed  is  fraudulent,  and  cannot  prevail  against  his  legal 
title.  There  can  be  no  doubt  that  the  heir  at  law  may  file 
his  bill  in  this  court  to  set  aside  an  administrator's  deed 
under  such  circumstances.  This  is  the  proper  tribunal  for 
such  an  investigation.  There  certainly  can  be  no  objec- 
tion, then,  to  the  court's  trying  the  question  of  fraud,  be- 
cause it  is  involved  in  a  suit  the  object  of  which  is  par- 
tition. If  it  is  a  question  of  title  which  this  court  may 
try,  it  can  determine  it  as  well  in  this  suit  as  in  any  other. 
It  is  not  the  fact  that  the  question  of  title  arises  in  a  suit 
for  partition  merely,  that  deprives  the  court  of  jurisdiction. 
Tli9  question  is,  is  it  a  legal  title,  which  exclusively  be- 
longs to  a  legal  tribunal  ? 

How  does  the  complainant's  case  then  stand  affected  by 
the  administrator's  deed  ?  The  bill  alleges  that  the  order 
of  the  Orphan's  Court  was  procured  by  fraud  ;  that  it  was 
procured  upon  a  false  representation  made  by  the  ad- 
ministrator as  to  the  decedent's  debts.  If  it  was  proper 
for  the  court  to  inquire  into  the  fraud  as  to  the  order  be- 
tween these  parties,  the  evidence  is  not  satisfactory  to 
sustain  the  charge  of  fraud  in  this  respect.  It  is  insisted, 
also,  that  the  sale  was  fraudulent,  and  that  the  deed  is 
void,  not  simply  on  the  ground  that  the  administrator 
was  seller  and  buyer,  but  because,  through  the  manage- 
ment of  the  administrator,  the  property  sold  at  a  price 


FEBRUARY  TERM,  1854.  103 


Obert  v.  Obert. 


mucli  below  its  value.  There  was  much  testimony  taken 
on  this  point.  There  was  no  evidence  as  to  what  took 
place  at  the  sale,  or  as  to  how  it  was  conducted.  There 
is  evidence  to  excite  a  strong  suspicion  that  the  adminis- 
trator did  not  act  bona  fide  in  conducting  the  sale ;  but  a 
very  large  portion  of  the  testimony  was  wholly  illegal 
and  laying  out  of  view  this  evidence,  the  proof  is  not 
satisfactory  as  to  any  positive  fraud  on  the  part  of  the  ad- 
ministrator. 

"Was  he  the  real  purchaser  at  the  sale  ?  The  property 
was  struck  off  to  David  Smith,  for  the  sum  of  $500.  The 
fact,  that  he  was  a  man  of  no  means,  and  that  on  the  same 
day  the  administrator  conveyed  the  property  to  Smith,  he 
reconveyed  it  to  Peter  G.  Obert,  who  was  the  administra- 
tor, is  sufficient  proof,  without  any  explanation  of  the 
transaction,  that  the  purchase  was  made  through  Smith 
for  the  benefit  of  Obert.  There  is  other  evidence  to  cor- 
roborate this.  That  deed  cannot  stand,  then,  against  the 
title  of  the  complainant.  But  the  deed  is  not  absolutely 
null  and  void.  It  is  a  matter  of  right,  however,  in  the 
complainant,  and  not  of  discretion  in  the  court,  to  have 
the  deed  removed  out  of  his  way,  and  set  aside.  I  will 
not  refer  to  the  authorities  on  this  point,  as  I  have  had 
occasion  lately  to  refer  to  and  examine  them  in  the  case 
of  Scott  v.  Gamble  and  wife,  1  /Stock.  235.  They  were,  also, 
lately  examined  by  the  Court  of  Errors  and  Appeals,  in 
the  case  of  Mulford  v.  Bowen  and  others,  1  Stock.  797,  and 
the  principle  was  fully  sustained  by  that  court.  In  setting 
aside  such  a  deed,  this  court  will  do  it  on  equitable  terms. 
There  is  no  difficulty  in  adjusting  the  equities,  if  any  ex- 
ist, in  a  case  like  this.  In  the  case  of  Michoud  et  al.  v. 
Harris  et  al.,  4  How.  563,  it  was  part  of  the  directions  to 
the  master,  where  a  similar  deed  was  set  aside,  to  make 
partition  of  the  lands,  if  necessary,  for  the  purpose  of 
settling  the  equitable  rights  of  the  parties. 

The  consideration  money  paid  by  Peter  G.  Obert  was 
$500.  This  money  was  appropriated  to  pay  off  the  debts 


104  CASES  IN  CHANCEKY. 

Obert  v.  Obert. 

of  the  estate  which  were  liens  upon  the  land.     It  is  equi- 
table, therefore,  that  the  land  should  pay  this  amount. 

But  Peter  G.  Obert  has  no  interest  in  this  partition. 
The  title  under  the  administrator's  deed  is  now  in  Wil- 
liam Simpson,  and  the  equities  are  to  be  adjusted  with 
him.  It  is  insisted  that  the  conveyance  to  him  was  fraud- 
ulent, and  made  to  defeat  the  creditors  of  Peter  G.  Obert, 
and  that  he  purchased  with  full  knowledge  of  the  de- 
fendants' title  and  of  the  defect  in  the  title  of  Peter  G. 
Obert.  These  questions  are  not  in  issue  by  the  plead- 
ings. The  bill  merely  alleges  that  William  Simpson 
claims,  or  did  claim,  some  portion  of,  or  interest  in  the 
premises,  and  "  leaves  him  to  make  out  by  proof  to  the 
satisfaction  of  -the  court,  in  the  mode  that  may  be  desig- 
nated therefor,  in  case  the  same  becomes  necessary." 
Simpson  discovers  his  title  by  his  answer,  and  affirms 
that  he  is  a  bona  fide  purchaser  for  a  valuable  considera- 
tion without  notice.  If  the  complainant  desired  to  im- 
peach his  title  for  fraud,  he  should  have  made  the  proper 
allegations  by  his  bill ;  or,  after  his  title  was  discovered, 
should  have  amended  his  bill  for  that  purpose.  The  bona 
fides  of  Simpson's  title  is  not  put  in  issue.  lie  was  not 
bound  to  rebut  any  evidence  upon  a  question  not  in  issue 
by  the  pleadings.  What  equitable  claim,  then,  can  he 
make  upon  the  land  before  a  partition  is  decreed  ?  He 
does  not  state  in  his  answer  what  consideration  he  paid 
for  the  land,  nor  does  the  evidence  show  he  paid  any- 
thing, except  the  payment  he  made  to  the  sheriff,  which 
I  shall  notice.  I  think  the  evidence  is  satisfactory  that  he 
did  not  pay  anything  to  Peter  G.  Obert.  Although  the 
conveyance  to  him  was  a  voluntary  conveyance,  it  is  good 
as  between  the  parties  to  it.  But  if  the  complainant's 
title,  which  he  obtained  through  Peter  G.  Obert,  cost  him 
nothing,  he  can  claim  nothing  for  its  redemption.  He  did, 
however,  make  a  payment  on  the  land.  Peter  G.  Obert 
mortgaged  the  premises  for  $500.  This  mortgage  was 
foreclosed,  and  Simpson  purchased  in  the  property  at  the 


FEBKUAKY  TEEM,  1854.  105 


Obert  v.   Obert. 


sheriff's  sale.  Thus  Peter  G.  Obert  raised  out  of  the  land 
the  money  to  indemnify  him  for  the  payment  he  had  made 
of  the  debts  of  the  intestate.  William  Simpson,  having 
paid  this  mortgage  debt,  it  is  equitable  he  should  be  in- 
demnified. But  he  must  account  for  the  rents  and  profits 
of  the  premises  during  the  time  he  has  occupied  them. 

It  remains  to  decide  between  whom  this  partition  is  to  be 
made.  The  complainant  is  entitled  to  six-twentieths. 
As  to  one-twentieth,  he  is  to  receive  it  without  any  abate- 
ment, is  entitled  to  one-twentieth  of  the  rents  and  profits, 
to  be  charged  to  Simpson.  Of  this  part  he  is  in  possession 
under  a  judgment  at  law.  The  administrator's  deed  as  to 
that  portion,  having  been  set  aside  by  a  court  of  law,  this 
court  is  not  called  upon  to  remove  the  deed  out  of  the 
complainant's  way  to  entitle  him  to  a  partition  as  to  this 
one-twentieth.  Of  course  the  court  can  impose  no  terms 
upon  him  as  to  that.  Upon  the  other  portions  of  his  in 
tercst,  it  is  right  that  equitable  terms  should  be  imposed, 
because,  in  order  to  grant  the  partition,  the  court  is  called 
upon,  in  the  exercise  of  its  equitable  powers  to  remove 
a  deed  which  is  au  obstacle  in  the  way  of  granting  the  ob- 
ject of  the  bill. 

There  are  other  defendants  in  this  suit,  Peter  G.  Obert, 
George  Obert,  Samuel  Magie  and  Nancy  his  wife,  and 
Stephen  Verity  and  Susan  his  wife.  Peter  G.  Obert  dis- 
claims all  interest  in  the  partition  ;  whatever  interest  he 
had  has  been  conveyed  to  William  Simpson.  George 
Obert  is  one  of  the  heirs  at  law  of  George  Obert,  deceased, 
under  whom  all  parties  claim.  He  has  no  interest  in  the 
partition,  unless  the  administrator's  deed  is  removed  out 
of  his  way.  That  deed  is  not  a  nullity  and  absolutely 
void.  George  Obert  may  avoid  it,  but  until  he  does  so 
the  deed  is  valid,  and  conveys  the  interest  it  purports.  A 
stranger  cannot  avoid  the  deed.  The  complainant  may 
avoid  it  as  it  affects  him,  but  he  cannot  interfere  with  it 
as  between  other  parties.  Nor,  because  the  deed  is  avoided 
and  set  aside  as  to  six-twentieths,  does  it  follow  that  the 


106      •  CASES  IN  CHANCEKY. 

Obert  v.  Obert 

decree  which  affecte  that,  interferes  in  any  way  as  to  the 
relative  rights  of  other  parties  under  the  deed  as  to  the 
remaining  fsurteen-twentieths.  George  Obert  has  never 
avoided  the  administrator's  deed.  He  has  not  appeared 
in  this  suit,  and  asks  no  aid  of  the  court  on  his  behalf. 
The  court  will  not  volunteer  in  this  matter.  It  may  be 
that  George  Obert  is  willing  to  have  the  deed  stand.  He 
may  consider  it  his  pecuniary  interest  not  to  interfere 
with  the  deed,  and  be  unwilling  to  submit  to  the  equita- 
ble terms  imposed  by  the  court  in  decreeing  its  avoid- 
ance, or  other  considerations  may  influence  him.  He  may 
be  unwilling  to  interfere  with  his  brother  in  a  matter 
which  he  may  consider  merely  technical  in  its  character. 
As  between  George  Obert  and  William  Simpson,  Simp- 
son's title  must  stand.  Samuel  Magie  and  Nancy  his  wife, 
the  bill  alleges,  are  entitled  to  one-twentieth  through 
Nancy,  as  one  of  the  children  and  heirs  at  law  of  George 
Obert  deceased ;  and  Stephen  Verity  and  Susan  his  wife 
claim  one-twentieth  through  Susan,  as  one  of  the  children 
and  heirs  at  law.  These  interests  stand  precisely  on  a 
footing  with  that  of  George  Obert's.  The  administrator's 
deed  has  never  been  interfered  with,  and  the  parties  do 
not  now  ask  the  interference  of  the  court. 

There  is  no  one,  then,  interested  in  the  partition,  ex- 
cept the  complainant  and  William  Simpson.  As  to  the 
other  parties,  the  bill  must  be  dismissed. 

William  Simpson  sets  up  in  his  answer,  as  a  bar  to  the 
complainant's  title,  the  statute  of  limitations.  As  to  two- 
twentieths,  the  statute  can  have  no  applications,  on  ac- 
count of  the  nonage  of -the  parties.  As  to  the  other  one- 
fifth,  or  four-twentieths,  Nancy,  under  whom  the  com- 
plainant holds,  was  of  age  at  the  time  of  the  administra- 
tor's deed.  But  I  do  not  think  the  statute  should  be  ap- 
plied. Although  courts  of  equity  generally  adopt  the 
statute  of  limitations,  yet  within  what  time  a  constructive 
fraud  will  be  barred,  must  depend  upon  the  circumstances 
of  the  case,  and  these  are  examinable.  Michoud  et  al.  v. 
lirod  et  al.,  4  How.  503. 


FEBKUAKY  TEEM,  1854.  107 

Speer  v.  Whitfield. 

There  is  some  difficulty,  as  to  the  boundaries  of  the  land, 
which  must  be  settled  by  the  master.  There  must  be  a 
reference  for  this  purpose,  and  for  an  account,  directing  the 
master  to  allow  William  Simpson  the  sum  of  four  hundred 
and  ninety-five  dollars,  with  interest  from  the  time  of  its 
payment  to  the  sheriff,  and  charging  five-twentieths  of  the 
six-twentieths  owned  by  the  complainant  with  their  pro- 
portional part,  and  charging  "William  Simpson  with  the 
rents  and  profits  during  the  time  of  his  possession  of 
nineteen-twentieths,  and  crediting  five-twentieths  of  com- 
plainant's interest  with  its  proportion.  Simpson  claims 
nothing  for  improvements.  Upon  coming  in  of  the  master's 
report,  the  court  will  settle  the  terms  upon  which  the  decree 
will  be  made. 

CITED  in  Huston  v.  Cassedy,  2  Beas.  230;  Hoivell  v.  Sebring,  1  McCar., 
90;  Smith  v.  Drake,  8  C.  E.  Gr.,  304  ;  305;  306. 


JAMES    T.  SPEER  vs.   WILLIAM  WHIT-FIELD,  ABRAHAM   J". 
JEROLOMAN,  and  others. 

Parol  evidence  is  not  admissible  to  explain  a  written  agreement,  when  there 
is  no  ambiguity  apparent  on  the  face  of  it. 

If  the  mortgagee  purchases  the  mortgaged  premises  subject  to  the  mortgage, 
he  cannot  hold  the  land,  and  enforce  the  mortgage  debt  against  the  mort- 
gagor. 

If  the  mortgagee  purchases  the  mortgaged  premises  upon  an  execution  at  law 
against  the  mortgagor,  in  favor  of  a  third  person,  he  purchases  subject  to 
the  mortgage,  and  thereby  extinguishes  his  debt ;  if  he  purchases  upon  an 
execution  at  law  upon  a  judgment  for  his  mortgage  debt,  then  he  extin- 
guishes his  debt  against  the  mortgagor  to  the  amount  only  he  gives  for  the 
land. 

A  mortgage  was  executed  to  William  Whitfleld.  This  mortgage  is  absolute 
upon  the  face  of  it.  But  it  was  executed  in  trust,  and  the  trust  is  declared 
in  an  instrument  of  writing  ln?tween  Abraham  J.  Jeroloman  and  the  mort- 
gagee. By  the  plain  construction  of  the  instrument,  it  socuivd,  first,  to  Wil- 
liam Whitfield,  John  Kennedy,  and  Abraham  V.  Speer.  such  sum  or  sums  of 
money  as  were  due  and  owing  to  them,  or  to  either  of  them,  from  Abraham 
J.  Joroloman  it  the  time  of  its  execution,  as  well  as  all  such  sums  of  money 
as  they  should  advance  on  account  of  any  judgment*,  or  other  claim,  or 
debt,  then  existing  against  Jeroloman,  and  the  interest  accruing  thereon; 
and  second,  it  secures  to  John  8.  King,  William  H.  Brant,  Peter  Cooman, 
NU!  Minard  Cooman,  the  several  amounts  of  money  then  due  and  owing  to 


108  CASES  IN  CHAXCERY. 

Speer  v.  Whitfield. 

them,  or  either  of  them,  and  to  Joseph  Budd,  the  sum  of  one  hundred  dol- 
lars. Held,  the  debt  due  Speer  at  the  time  of  the  execution  of  the  writing 
has  a  preference  over  any  advances  subsequently  made  by  any  of  the  parties 
to  the  instrument. 

A  judgment  creditor  may  assign  a  part  of  his  interest  in  a  judgment.  If  he 
assigns  the  debt,  a  court  of  equity  will  secure  to  the  assignee  the  benefit  of 
the  judgment.  Where  a  trustee  pays  a  debt  which  is  a  prior  lien  on  the 
trust  fund,  and  which  it  is  necessary  to  pay  in  order  to  protect  the  fund, 
for  the  benefit  of  the  trust,  the  trustee  is  entitled  to  be  reimbursed  out  of 
the  trust  fund,  and  this  constitutes  a  first  lien  on  the  fund. 

'""ase  stated  where  a  cross-bill  is  necessary. 


The  case  is  sufficiently  stated  in  the  opinion  of  the 
Chancellor. 

A.  C.  3L  Pennington,  for  complainant. 
W.  K.  McDonald,  for  defendant. 

THE  CHANCELLOR.  As  to  the  mortgage  executed  by 
Abraham  J.  Jeroloman  and  others  to  John  Williams,  and 
by  Williams  assigned  to  the  complainant,  there  is  no  dis- 
pute, either  as  to  the  amount  due  upon  the  mortgage,  or  of 
its  being  a  valid  lien  upon  the  mortgaged  premises. 

The  first  question  in  controversy  between  the  parties 
grows  out  of  the  mortgage  executed  to  William  Whit- 
field.  This  mortgage  is  absolute  upon  the  face  of  it.  But 
it  was  executed  in  trust,  and  the  trust  is  declared  in  an 
instrument  of  writing  between  Abraham  J.  Jeroloman 
and  the  mortgagee.  Parol  evidence  was  taken  to  show  the 
intention  of  the  parties,  and  the  construction  they  put 
upon  the  writing.  The  evidence  is  altogether  inadmissi- 
ble. There  is  nothing  in  the  case  to  justify  the  court  in 
receiving  it.  There  is  no  ambiguity  in  the  instrument  it- 
self, and  the  allegation  of  fraud  or  mistake  is  not  sustained 
by  any  proof.  The'  writing  must  speak  for  itself,  and  must 
settle  the  rights  of  the  parties  who  have  any  interest  se- 
cured by  it.  By  the  very  plain  construction  of  the  instru- 
ment, it  secures,  first,  to  William  Whitfield,  John  Ken- 


FEBEUAKY  TERM,  1854.  109 

Speer  v.  Whitfield. 

nedy,  and,  Abraham  V.  Speer  such  sum  or  sums  of  money 
as  were  due  and  owing  to  them,  or  to  either  of  them,  from 
Abraham  J.  Jeroloman  at  the  time  of  its  execution,  as 
well  as  all  such  sums  of  money  as  they  should  advance 
on  account  of  any  judgments,  or  other  claim  or  debt 
then  existing  against  Jeroloman,  and  the  interest  accru- 
ing thereon  ;  and  second,  it  secures  to  John  S.  King,  Wil- 
liam H.  Brant,  Peter  Cooman,  and  Minard  Coomaii,  the 
several  amounts  of  money  then  due  and  owing  to  them, 
or  either  of  them,  and  to  Joseph  Budd,  the  sum  of  one 
hundred  dollars.  All  these  individuals  are  made  parties 
to  this  suit.  They  none  of  them  make  any  claim  to  the 
trust  fund.  It  is  admitted  that  these  claims  have  all  been 
extinguished,  except  those  of  the  complainant  and  of 
Abraham  Y.  Speer  and  John  S.  King.  The  complainant 
alleges  that  the  claims  of  Speer  and  King  were  assigned 
to  him,  and,  as  assignee  of  their  respective  interests,  he 
claims  payment  out  of  the  trust  fund. 

The  bill  alleges,  that  all  the  debts  secured  by  the  mort- 
gage under  the  declaration  of  trust,  except  those  claimed 
by  the  complainant,  and  all  the  advances  made  under  it, 
if  any  were  made,  have  been  paid  off  and  satisfied  by 
Abraham  J.  Jeroloman.  The  evidence  is  very  satisfactory 
that  the  trustee  has  never  been  paid  the  debt  secured  to 
him ;  that  all  the  claims  that  have  been  satisfied  were 
paid  by  the  trustee  ;  and  that,  for  these  payments,  and  the 
further  advances  made  by  him,  he  is  entitled  to  the  full 
amount  secured  by  the  mortgage,  subject  to  such  liens  as 
may  exist  upon  the  fund  for  the  debts  of  Speer  and  King. 
The  settlement  made  between  the  trustee  and  Jeroloman 
appears  to  have  been  a  bona  fde  one,  and  is  in  no  way  im- 
peached. Jerolomen  admitted,  in  the  settlement,  that  the 
whole  amount  due  upon  the  mortgage  had  been  advanced 
by  the  trustee ;  and  Jeroloman  does  not  now  question 
that  settlement.  It  cannot  be  questioned  by  any  one  eke,  ex- 
cept a  creditor  whose  rights  are  impaired  by  it.^ 

As  to  the   Speer  claim,  Whitfield   insists,   in   the  first 

VOL.   ii  K 


110  CASES  IK  CHANCERY. 

Speer  v.  Whitfield. 

place,  that  it  lias  been  extinguished.  On  the  6th  of  Janu- 
ary, 1844,  Abraham  Y.  Speer  recovered  a  judgment  against 
Jerolomen  for  the  sum  of  about  $700.  It  is  admitted  that 
Speer's  debt  secured  by  the  mortgage  was  included  in 
that  judgment.  An  execution  was  issued  upon  the  judg- 
ment, and  all  the  lands  embraced  in  the  mortgage,  to- 
gether with  considerable  other  real  estate,  were  sold,  and 
purchased  by  Speer,  for  about  $200.  For  the  land  em- 
braced in  the  Whitfield  mortgage,  he  gave  $33.  "VVhitfield 
insists,  that  Speer  having  purchased  the  mortgaged  pre- 
mises, thereby  extinguished  his  debt.  It  is  true,  if  the 
mortgagee  purchases  the  mortgaged  premises  subject  to  the 
mortgage,  he  cannot  hold  the  land,  and  enforce  the  pay- 
ment of  the  mortgage  debt  against  the  mortgagor ;  but 
he  may  hold  his  mortgage  to  protect  his  title.  If  he  pur- 
chase the  mortgage  premises  on  an  execution  at  law 
against  the  mortgagee  in  favor  of  a  third  person,  he  pur- 
chases subject  to  tjie  mortgage,  and  thereby  extinguishes 
his  debt.  Or  if  he  purchases  the  mortgaged  premises  un- 
der an  execution  upon  a  judgment  for  his  mortgage  debt, 
he  thereby  extinguishes  his  debt  to  the  amount  he  gave  for 
the  land. 

In  this  case,  Speer  sold  the  mortgaged  premises  to  sa- 
tisfy his  debt  secured  by  the  mortgage,  and  he  purchased 
them  for  $33.  Had  the  premises  been  sold  for  this  debt 
alone,  Speer  would  be  obliged  to  give  a  credit  of  $33 
upon  his  interest  in  the  mortgage ;  but,  as  his  judgment 
was  for  a  much  larger  sum  than  the  amount  of  his  interest 
in  the  mortgage,  the  $33  must  be  credited  on  the  whole 
judgment  debt,  and  the  credit  upon  the  mortgage  must  be 
in  the  proportion  the  mortgage  debt  bears  to  the  judg- 
ment debt.  I  name  the  sum  of  $33.  This  may  not  be  the 
correct  amount.  That  is  to  be  ascertained. 

Whitfield  further  objects  to  the  Speer  claim,  that  by 
the  true  construction  of  the  trust  writing,  Whitfield  was 
secured,  not  only  in  such  sums  of  money,  as  at  the  time 
of  its  execution  Jeroloman  actually  owed  him,  but  all 


FEBKUAKY  TERM,  1854.  Ill 

Speer  u.  Whitfield. 

advances  he  might  thereafter  make  for  Jeroloman,  and 
that  the  advances  so  made  have  priority  over  Speer's  in- 
terest in  the  mortgage.  This  is  not  the  proper  construc- 
tion of  the  writing.  The  debt  due  Speer  at  the  time  of 
the  execution  of  the  instrument  had  a  preference  over  any 
advances  that  were  subsequently  made  by  any  of  the  par- 
ties to  the  instrument. 

Another  objection  is  made  to  the  complainant's  title  to 
Speer's  interest  in  the  mortgage.  The  complainant  claims 
that  interest  in  the  mortgage  under  an  assignment  exe- 
cuted to  him  by  Speer.  By  the  assignment,  Speer  assigns 
to  the  complainant  the  debt  due  him  from  Jeroloman,  se- 
cured to  him  by  the  mortgage,  and  which  was  embraced 
in  the  $700  judgment,  and  all  Speer's  interest  in  the 
mortgage  security,  and  also  certain  promissory  notes  which 
were  the  evidences  of  the  debt.  The  complainant  insists 
that  Speer,  having  obtained  a  judgment  for  the  debt, 
ought  to  have  made  an  assignment  of  the  judgment ;  and 
further,  that  a  part  of  the  judgment  debt  could  not  be 
separated  from  the  whole,  ana  the  part  only  assigned.  The 
judgment  was  only  a  further  security  for  the  debt,  and 
did  not  affect  the  mortgage  security.  There  certainly  is 
no  difficulty  in  a  judgment  creditor's  assigning  a  part  of 
his  interest  in  a  judgment.  That  the  judgment  is  not 
specially  mentioned  in  the  assignment,  is  a  mere  techni- 
cal objection.  Whatever  the  complainant  receives  of  the 
Speer  claim  under  this  mortgage,  Jeroloman  will  be  enti- 
tled to  have  credited  on  the  judgment.  It  is  a  bond  Jide 
assignment  of  the  debt  due  Speer  under  the  mortgage 
and  of  the  mortgage  security.  Such  was  the  intention  of 
the  parties ;  and  this  court  will  carry  out  such  intention, 
and  will  not  permit  any  mere  technical  objection  to  de- 
feat it. 

The  next  question  is,  as  to  the  debt  secured  John  S. 
King  under  the  mortgage.  I  do  not  think  there  is  any 
difficulty  as  to  the  complainant's  title  to  this  claim.  The 
evidence  of  the  debt  was  a  promissory  note,  which  the 


112  CASES  IN  CHAlSrCEKY. 

Speer  v.  Whitfield. 

complainant  now  holds.  Having  a  legal  claim  to  the  debt 
in  equity,  he  is  entitled  to  the  benefit  of  the  security. 
The  attempt  to  impeach  the  transfer  of  the  note  was  not 
successful.  But  in  the  question,  as  to  who  is  entitled  to 
the  proceeds  of  this  claim,  Whitfield  is  not  interested, 
except  as  trustee.  The  King  debt  is  secured  by  the  mort- 
gage. It  has  never  been  paid.  Its  lien,  therefore,  upon 
the  mortgage  fund  is  still  subsisting.  The  only  serious 
difiiculty  is,  as  to  priority  between  this  debt  and  the  ad- 
vances which  "Whitfield  made  subsequent  to  the  execution 
of  the  trust  writing.  We  cannot  speculate  as  to  the  in- 
tention of  the  parties.  The  language  of  the  instrument 
will,  I  think,  bear  but  one  interpretation.  The  debts  of 
"Whitfield,  Kennedy,  and  Speer,  then  due,  and  any  ad- 
vances they  should  make  on  account  of  any  judgment,  or 
other  claim,  or  debt,  then  existing  against  Jeroloman, 
were  first  secured,  and  then  the  King  and  other  debts 
particularly  mentioned.  Whitfield  then  is  to  be  paid  any 
debt  due  him  from  Jeroloman  at  the  time  the  mortgage 
was  executed,  as  well  as  any  advances  he  has  made  since 
on  account  of  any  judgment,  claim  or  debt,  then  exist- 
ing against  Jeroloman ;  and  these  advances,  having  been 
made  according  to  the  terms  of  the  instrument,  have  a 
preference  in  payment  over  the  King  debt. 

Independent  of  these  several  matters,  there  are  some 
payments  which  were  made  by  Whitfield,  as  trustee,  for 
the  purpose  of  protecting  the  trust  fund,  for  which  he  is 
entitled  to  be  reimbursed,  and  for  which  the  trust  fund  is 
first  liable.  He  paid  $50  on  the  complainant's  mortgage, 
which  has  priority  over  the  trust  mortgage.  It  being  a 
prior  lien,  the  trust  fund  was  subject  to  it,  and  the  com- 
plainant, having  paid  the  money  for  the  relief  of  the 
fund,  must  be  repaid.  The  trust  mortgage  was  also  sub- 
ject to  a  judgment  of  some  two  or  three  hundred  dollars. 
The  complainant  relieved  the  fund  from  this  encum- 
brance. For  this  amount,  likewise,  he  is  to  be  indemni- 
fied. 


FEBEUAKY  TERM,  1854.  113 

Speer  v.  Whitfield. 

This  disposes  of  all  the  questions  that  arise  under  the 
Whitfield  mortgage.  The  result  of  the  views  I  have  taken 
of  the  several  matters  in  controversy  is — 

First.  That  Whitfield  is  entitled  to  the  first  lien  on  the 
trust  fund,  for  the  amount  paid  by  him  for  its  protection, 
being  the  sum  paid  to  the  complainant  for  interst  due  on 
his  mortgage,  and  the  sum  paid  on  the  Joseph  H.  Wil- 
liams' judgment,  together  with  interest  on  those  advance- 
ments. 

Second.  Whitfield  is  to  be  paid  such  sums  of  money 
as  were  due  and  owing  to  him  from  Jeroloman  at  the 
date  of  the  mortgage,  and  the  interest. 

Third.  The  complainant  is  to  be  paid  the  amount  of 
any  such  sums  of  money  as  were  due  and  owing  from  Je- 
roloman to  Abraham  Y.  Speer  at  the  date  of  the  mort- 
gage, and  the  interest,  after  crediting,  in  the  manner  be- 
fore specified,  the  amount  Speer  paid  for  the  mortgaged 
premises  at  the  sheriff's  sale  under  his  judgment  and  ex- 
ecution. 

Fourth.  Whitfield  is  to  be  paid  any  such  sums  of  mo- 
ney, and  the  interest,  as  he  has  advanced  on  account  of 
any  other  claims  or  debts  existing  against  Jeroloman  at 
the  date  of  the  mortgage. 

Fifth.  The  complainant  is  to  be  paid  the  amount  of  the 
King  debt  secured  by  the  mortgage,  together  with  the 
interest. 

The  next  controverted  question  is,  as  to  the  deed  exe- 
cuted by  Abraham  J.  Jeroloman  and  wife,  and  Gitty  Je- 
roloman, to  William  Whitfield,  for  a  part  of  the  mort- 
gaged premises.  The  bill  alleges,  that  Gitty  Jeroloman 
having  executed  that  deed  without  her  husband,  it  is  void. 
It  is  true  that,  for  the  reason  alleged,  the  deed  does  not 
pass  any  interest  Gitty  Jeroloman  had  in  the  land;  but 
it  passes  the  title  of  Abraham  J.  Jeroloman  and  his  wife. 
The  complainant,  however,  has  no  interest  in  this  ques- 
tion. The  conveyance  is  subject  to  both  mortgages,  and 
the  validity  of  the  deed,  therefore,  cannot  affect  any 


CASES  IN  CHANCEKY. 


Speer  v.  Whitfield. 


interest  under  the  mortgages.  The  question  is  only  im- 
portant as  between  the  defendants  claiming  an  interest  in 
the  surplus  money.  Abraham  V.  Speer  claims  an  interest 
in  the  surplus  by  virtue  of  his  purchase  and  deed  under 
his  judgment.  But  as  to  Speer's  claim,  it  can  cover  no 
more  than  the  interest  which  Abraham  J.  Jeroloman  had 
in  the  premises  at  the  date  of  the  judgment.  I  cannot 
see,  therefore,  that,  by  virtue  of  his  purchase  under  the 
judgment,  it  becomes  of  any  importance  to  Speer  whether 
the  interest  of  Gitty  Jeroloman  passed  under  that  deed 
or  not.  With  regard  to  the  land  conveyed  to  William 
Whitfield,  it  must  not  be  sold,  unless  there  is  a  deficiency 
after  a  sale  of  the  other  land  embraced  in  the  mortgages, 
to  satisfy  the  mortgage  debts. 

There  is  one  other  question  involved  in  this  contro- 
versy. On  the  21st  of  April,  1843,  Abraham  J.  Jeroloman 
released  to  Gitty  Jeroloman  all  his  right  and  interest  in  a 
part  of  the  mortgaged  premises.  This  deed  bears  date 
prior  to  the  judgment  of  Speer  against  Jeroloman.  The 
bill  alleges,  that  this  deed  of  release  is  fraudulent,  and 
was  executed  with  the  intent  and  purpose  of  defrauding 
the  creditors  of  the  grantor.  A.  Y.  Speer,  by  his  answer, 
sets  up  the  same  defence  against  the  deed,  alleging  that 
it  is  void  and  of  no  effect  against  his  judgment.  If  the 
question  of  fraud  was  the  only  one  involved  as  to  this 
part  of  the  case,  I  could  not  decide  the  question  as  it  is 
presented  by  these  pleadings.  It  is  a  question  in  which 
the  complainant  is  not  interested.  Before  I  could  decide 
it,  it  would  be  necessary  for  Speer  to  file  a  cross-bill  to 
set  aside  the  conveyance.  But  there  are  other  difficulties, 
which  render  a  cross-bill  necessary.  Admitting  the  deed 
to  be  fradulent,  and  for  that  reason  void  as  to  Speer's 
judgment,  what  interest  in  the  premises  did  Jeroloman 
convey  by  this  deed,  and  what  interest  in  the  surplus 
would  Speer  then  have  by  virtue  of  his  judgment  ?  He 
would  be  entitled  to  the  interest  which  Abraham  J.  Je- 
roloman would  be  entitled  to.  WTiat  is  that  interest  ?  It 


FEBRUARY  TERM,  1854  115 

McKelway  v.  Armour. 

cannot  be  ascertained  from  these  pleadings.  The  bill  al- 
leges that  Abraham  and  his  wife,  and  James  J.  Jerolo- 
man  and  his  wife,  were  seized  of  the  fee,  and  so  the  an- 
swers admit;  but  what  were  their  respective  interests  in 
the  fee  does  not  appear.  Abraham  Y.  Speer  having  pur- 
chased only  the  equity  of  redemption  of  Abraham  J.  Je- 
roloman,  Speer's  right  cannot  be  determined  without 
first  ascertaining  what  the  interest  of  Abraham  J.  Jerolo- 
man  was.  That  issue  is  not  made  by  the  pleadings.  To 
settle  the  controversy,  as  to  the  release  of  Abraham  Je- 
roloman  to  Gitty  Jeroloman,  and  what  Speer's  rights  are 
under  his  purchase,  it  is  necessary  that  he  should  file  a 
cross-bill 

This  cause  must  therefore  stand  over,  in  order  to  give 
Speer  an  opportunity  of  presenting  his  case  by  proper 
pleadings.  If  he  fails  to  file  his  bill  within  thirty  days,  a 
decree  will  be  made  to  sell  the  mortgaged  premises  to 
pay  off  the  mortgaged  debts,  and  the  surplus  will  be  or- 
dered to  be  brought  into  court  to  abide  its  further  order. 


JOHN  MCKELWAY  vs.  ALEXANDER  H.  ARMOTJB  and  others. 


Parol  evidence  is  admissible  for  the  purpose  of  showing  a  mistake  in  a  deed. 
It  forms  one  of  the  exceptions  to  the  general  rule,  which  excludes  parol  evi  • 
dence  offered  to  vary  a  written  contract. 

Complainant  erected  a  valuable  dwelling  house,  by  mistake,  on  the  land  Oi 
defendant  ;  defendant  lived  in  the  vicinity,  saw  complainant  progressing, 
from  day  to  day,  with  the  improvements,  and  admitted  that  he  did  not  sus- 
pect the  erections  to  be  upon  his  lot  until  some  time  after  their  actual  erec- 
tion, when,  by  actual  measurement,  to  his  surprise,  he  discovered  the  mis- 
take. The  court  relieved  the  complainant,  putting  the  defendant  to  as  lit- 
tle inconvenience  as  possible. 


Jos.  F.  Randolph,  for  complainant. 
I>.  Gummere,  for  defendant,  Redmond. 


116  CASES  IN  CHANCERY. 

McKelway  r.  Armour. 

M.  Beasley  for  defendant.  Armour 

Jos.  S.  Green,  for  defendant,  Mrs.  Harrison. 

THE  CHANCELLOR.  The  facts  of  this  case  will  be  found 
in  4:  Hoist.  Ch.  JR.  322,  Potts  v.  Armour,  reported  by  mis- 
take as  Potts  v.  Arnow.  That  bill  was  filed  for  a  different 
purpose  from  that  of  the  present  one.  The  decision,  how- 
ever, involved  the  same  equities  as  exist  here.  That  bill 
was  dismissed,  for  want  of  prosecution,  upon  the  failure 
of  the  complainant  to  amend  his  bill,  the  Chancellor 
having  decided  that  to  be  ne'cessary,  although  this  does 
not  appear  in  the  case  as  reported. 

The  object  of  the  present  bill  is  to  relieve  the  com- 
plainant from  the  embarrassment  of  having  erected  a  valu- 
able dwelling  house,  by  mistake,  on  the  land  of  the  de- 
fendant, Armour.  The  prayer  of  the  bill  is,  that  the  deed 
from  Redmond  to  Armour  may  be  so  reformed  as  to  ex- 
clude the  lot  upon  which  the  complainant  has  erected  his 
buildings,  and  so  as  to  embrace  a  lot  of  the  same  dimen- 
sions adjacent  thereto,  which,  it  is  alleged,  was  intended  by 
both  grantor  and  grantee,  as  the  lot  to  be  conveyed, 
or  that  Armour  may  be  decreed  to  take  the  improvements 
upon  equitable  terms. 

If  the  mistake  was  in  the  deed  from  Redmond  to  Ar- 
mour, the  court  has  power  to  correct  the  mistake  ;  and 
parol  evidence  is  admissible  for  the  purpose  of  showing 
the  mistake.  It  forms  one  of  the  exceptions  to  the  gene- 
ral rule,  which  excludes  parol  evidence  offered  to  vary  a 
written  contract. 

It  will  be  perceived,  by  the  Chancellor's  opinion  in  4 
H.  O.  R.  323,  that  he  considered  the  evidence  before  him 
as  satisfactorily  establishing  the  mistake  to  be  in  the  deed 
from  Redmond  to  Armour.  If  I  could  reach  the  same 
conclusion  from  the  evidence,  I  should  have  no  hesita- 
tion in  adjusting  the  equities  of  the  parties  according  to 
the  principles  laid  down  by  him  in  that  case.  Redmond's 


FEBKUAEY  TERM,  1854.  11? 

McKelway  v.  Armour. 

testimony  does  prove  the  mistake  to  have  been  there  be- 
yond a  doubt.  But  Redmond  is  not  a  competent  witness. 
Both  the  complainant  and  Armour  hold  under  Redmond's 
warranty.  Redmond  first  conveyed  the  lot  to  Armour, 
and  wan-anted  the  title.  Afterwards,  with  like  warranty, 
Redmond  conveyed  to  Cook,  through  whom  the  com- 
plainant derived  his  title.  If,  by  this  suit,  the  first  deed 
is  so  reformed  as  to  convey  a  different  lot  of  land,  it  re- 
lieves Redmond  from  the  consequences  of  having  war- 
ranted to  Cook  title  to  the  same  lands,  which  before  he 
had  conveyed  to  Armour.  If  the  complainant  succeeds 
in  this  suit,  it  relieves  Redmond  from  his  warranty  ;  if  the 
complainant  fails,  then  Redmond  must  respond  to  Cook, 
or  to  the  complainant,  who  holds  under  him,  for  a  breach 
of  warranty.  His  interest  is  not  balanced.  He  will  be  di- 
roctly  benefitted  by  the  complainant's  success  in  this  suit. 
Sotting  aside  the  testimony  of  Redmond,  I  cannot  say 
that  the  evidence  is  sufficient  to  establish  the  mistake  to 
have  been  in  the  deed  to  Armour.  Armour  denies  it  in 
his  answer.  He  declares  that  he  purchased  the  very  lots 
which  Redmond  conveyed  to  him,  and  that  there  was  no 
mistake.  There  is  no  positive  evidence  to  conflict  with 
this  statement  in  Armour's  answer.  The  complainant  re- 
lies upon  circumstances,  but  they  are  susceptible  of  an 
interpretation  quite  as  consistent  with  another  hypothesis. 
But  it  is  proved,  beyond  all  doubt,  that  the  complainant 
erected  his  improvements  on  this  lot  by  mistake:  he  sup- 
l>osed  that  it  was  the  lot  next  that  belonged  to  Armour. 
Armour  labored  under  the  same  mistake.  He  lived  in  the 
vicinity ;  he  saw  the  complainant  progressing,  from  day 
to  day,  witli  these  improvements.  If  he  knew  this  to  be 
his  lot,  his  silence  was  a  fraud  upon  the  complainant ;  but 
this  is  not  pretended.  He  admits  that  lie  did  not  suspect 
the  erections  to  be  upon  his  lot,  until  some  time  after 
their  erection,  when  by  actual  measurement,  to  his  sur- 
prise, he  discovered  the  mistake.  Under  such  circum- 
stances, it  would  be  most  unjust  to  permit  Armour  to 


118  CASES  IN  CHANCERY. 

McKelway  v.  Armour. 

take  these  improvements,  and  to  send  the  complainant  away 
remediless. 

It  is  very  true,  as  was  urged  upon  the  argument,  the  com- 
plainant is  the  most  to  blame  in  this  matter.  A  diligent 
examination  of  the  deed  to  Armour,  and  an  actual  measure- 
ment of  the  land,  would  have  decided  the  difficulty.  But  it 
was  a  vacant  lot  of  land,  plotted  out  upon  a  map  only,  and 
the  mistake  was  one  which  might  occur  to  the  most  careful 
and  diligent  man.  The  fact  of  Armour's  standing  by,  and 
participating  in  the  mistake,  is  an  important  feature  in  the 
case. 

In  adjusting  the  equities  of  the  parties,  a  decree  should 
be  made,  which,  while  it  relieves  the  complainant,  must  put 
Armour  to  as  little  inconvenience  as  possible. 

I  have  concluded,  therefore,  to  offer  Armour  the  privi- 
lege of  taking  the  improvements  at  a  value  to  be  ascertained 
upon  equitable  principles  by  a  master ;  or,  if  he  prefers  it, 
to  order  a  reference  to  a  master  to  ascertain  the  value  of 
the  lot,  and  to  decree  a  release  to  the  complainant  upon  his 
paying  the  valuation.  Twenty  days  will  be  allowed  Armour 
to  make  his  selection  of  these  offers,  if  he  desires  it.  Should 
he  decline  selecting  either  of  them  within  the  time  limited, 
I  shall  order  a  decree  to  the  following  effect :  that  Red- 
mond convey  to  Armour  lot  No.  32  free  and  clear  of  all 
encumbrances,  and  that  Armour  release  to  complainant  lot 
No.  34.  As  between  the  complainant  and  Armour,  this 
will  be  just  and  equitable,  for  it  appears,  by  the  evidence, 
that  lot  32  is  more  valuable  than  lot  34.  As  to  Redmond, 
he  admits  this  to  be  correct,  and  agreeable  to  his  original 
intention,  and  tenders  himself  ready  to  do  this. 

As  to  Mrs.  Harrison's  mortgage,  I  cannot  put  her  to  any 
hazard.  I  will  decree  her  mortgage  to  be  a  lien  on  lots  32 
and  33,  but(lot  34  must  stand  to  make  good  any  deficiency. 

CITED  in  Durant  v.  Bacot,  2  Beas.  20§. 


FEBEUAEY  TEEM,  1854.  119 


Blair  v.  Ward. 


JOHN  I.  BLAIB  and  JAMES  BLAIB  vs.  SAEAH  WABD,  THOMAS 
COOK,  et  al. 

Sarah  Ward  executed  two  bonds  to  her  son  J.  L.  Ward,  and  at  the  same  time 
a  mortgage  to  secure  the  same  on  three  tracts  of  land.  Ward,  on  1st  De- 
cember, 1847,  assigned  these  bonds  to  complainants,  and  on  the  same  day 
executed  and  delivered  to  complainants,  as  collateral  security,  a  mortgage 
on  three  tracts  of  land.  This  mortgage  included  the  land  in  the  Sarah 
Ward  mortgage,  together  with  some  other  land.  All  the  said  lands  had 
descended  to  J.  L.  W.,  as  the  heir  of  his  father.  The  land  included  in  the 
Sarah  Ward  mortgage  had  been  conveyed  to  her  by  J.  L.  W.,  and  a  mort- 
gage given  to  secure  the  purchase  money.  Complainants  find  on  the  re- 
cord a  deed  made  by  J.  L.  W.  to  Thomas  Cook,  embracing  a  portion  of  the 
land  embraced  by  the  collateral  mortgage ;  but  this  deed  was  not  recorded 
until  the  18th  of  January,  1848,  whereas  the  mortgage  to  complainants  was 
recorded  on  9th  December,  1847.  Defendants  insisted  that  complainants 
had  notice  of  conveyance  to  Cook  at  the  time  of  the  execution  of  their 
mortgage,  and  relied  on  the  testimony  of  John  L.  Ward,  one  of  the  de- 
fendants, who  was  examined,  subject  to  exception.  Held,  that  there  being 
no  question  as  to  Cook's  having  lost  his  priority  by  any  mere  neglect  on 
his  part  to  record  his  deed  with  proper  diligence,  that  Ward  was  interested 
in  the  event  of  the  suit,  and  was  therefore  not  a  competent  witness. 

Where  a  mortgagee  has  released  lands,  primarily  liable  for  his  debt,  to  the 
prejudice  of  another  mortgagee,  who  has  a  lien  upon  a  part  only  of  the 
lands  embraced  in  the  first  mortgage,  the  court  may  prevent  the  first  mort- 
gagee from  enforcing  his  mortgage  upon  the  portion  of  the  land  common 
to  both  mortgages  until  he  deducts  from  his  debt  the  value  of  the  land  re- 
leased. But  the  mortgagee  will  not  be  liable  to  such  consequences,  unless 
he  has  knowingly  and  wrongfully  prejudiced  the  rights  of  the  other  mort- 
gagee. He  must  have  knowledge  of  the  other  mortgagees'  rights.  If  he 
releases  without  notice,  he  is  not  to  be  a  sufferer.  If  the  other  mortgagee 
wishes  to  protect  himself,  he  must  give  notice  of  his  rights. 

The  statute  does  not  make  the  record  notice  for  any  suoh  purpose. 


The  bill  alleges  that,  on  the  15th  day  of  November, 
1847,  Sarah  Ward  executed  her  two  bonds,  one  of  $1500 
and  one  of  $1000,  to  her  son,  J.  L.  Ward,  and  at  the  same 
time  a  mortgage  to  secure  the  same  on  three  tracts  of 
land — 1st,  of  10  acres,  2d,  of  2  acres,  and  3d,  of  10  acres, 
and  that,  on  the  1st  December,  1847,  the  said  J.  L.  W. 
assigned  the  said  bonds,  the  one  of  $1500  to  John  I.  Blair, 
and  the  other  of  $1000  to  James  Blair,  and  the  said  mort- 


120  CASES  IN  CHANCERY. 

Blair  v.  "Ward. 

gage  to  J.  I.  B.  and  J.  B.  to  secure  them  $2500,  which  on 
that  day  they  had  advanced  to  J.  L.  W. ;  that,  on  the 
,  same  day  J.  L.  W.,  executed  and  delivered  to  the  com- 
plainants, as  collateral  security,  and  to  secure  any  defi- 
ciency upon  the  two  bonds  by  the  nonpayment  of  the 
same,  a  mortgage  of  $2500  on  three  tracts  of  land — 1st, 
lot  of  4  acres,  2d,  lot  of  20  acres,  and  3d,  lot  of  1  acre ; 
that  the  collateral  mortgage  includes  the  land  in  the  Sa- 
rah Ward  mortgage,  together  with  some  other  land.  All 
the  said  lands  had  descended  to  J.  L.  W.,  as  the  heir  of 
his  father.  The  land  included  in  the  Sarah  Ward  mort- 
gage had  been  conveyed  to  her  by  J.  L.  W.,  and  the 
mortgage  of  $2500  given  to  secure  the  purchase  money. 

The  bill  further  alleges,  that  Daniel  Crane  held  a  mort- 
gage of  $2000,  dated  July  15,  1846,  given  to  him  by  Icha- 
bod  B.  Ward,  the  father  of  J.  L.  W.,  and  which  covers 
the  1st  and  2d  lots  in  Sarah  Ward's  mortgage  and  the  1st 
and  2d  lots  in  the  collateral  mortgage. 

The  bill  further  alleges,  that  the  complainants  find  on 
the  record  a  deed  made  by  J.  L.  W.,  to  Thomas  .Cook,  em- 
bracing the  1st  and  2d  lots  in  the  collateral  mortgage ; 
but  that  this  deed  was  not  recorded  until  the  18th  of 
January,  1848,  whereas  the  said  mortgage  to  J.  I.  B.  and 
J.  B.  was  recorded  on  the  9th  of  December,  1847 ;  that  the 
complainants  had  no  notice  of  the  deed  to  Cook,  and 
they  insist  it  is  void,  as  against  their  said  mortgage. 

The  bill  further  states,  that  on  the  23d  December,  1847, 
Daniel  Crane  released  to  Thomas  Cook  the  lot  conveyed 
to  him,  and  insists  that  if  T.  Cook's  conveyance  is  valid  as 
against  their  collateral  mortgage,  then  that  Daniel  Crane 
must  be  postponed  on  his  mortgage,  to  the  Sarah  Ward 
mortgage,  to  the  amount  of  the  value  of  the  lot  released. 

Sarah  L.  Ward  and  Thomas  Cook  separately  answered 
the  bill,  and  the  principal  defence  set  up  is,  that  the 
Blairs  had  notice  of  the  conveyance  to  Cook. 

A.  Whitehead,  for  complainants. 


FEBKUAKY  TEEM,  1854.  121 


Blair  v.  Ward. 


D.  A.  Ha/yes,  for  Daniel  Crane. 

F.  T.  Frdinghusen,  for  Thomas  Cook. 

The  Chancellor.  There  are  two  important  questions 
involved  in  this  controversy. 

First.  Is  the  conveyance  to  Thomas  Cook  void  and 
of  no  effect  as  against  the  mortgage  executed  by  John  L. 
Ward  to  the  complainants  ? 

Second.  If  that  conveyance  is  not  void  as  against  the 
mortgage,  must  Daniel  Crane's  mortgage  of  $2000  be 
postponed  in  payment  to  the  Sarah  Ward  mortgage  as- 
signed to  the  complainants,  to  an  amount  the  value  of 
the  premises  which  Daniel  Crane  released  from  his  mort- 
gage ? 

As  to  the  first  question.  Thomas  Cook's  deed  bears 
date,  and  was  acknowledged,  prior  to  the  date  and  ac- 
knowledgement of  the  complainant's  mortgage,  but  was 
not  recorded  until  more  than  six  weeks  after  the  mort- 
gage was  placed  on  record.  By  the  record,  then,  the  deed, 
as  declared  by  the  statute,  is  void  and  of  no  effect  as 
against  the  mortgage.  But  the  defendants  insist  that  the 
complainants  had  notice  of  the  conveyance  to  Cook  at 
the  time  of  the  execution  of  their  mortgage,  and  this  is 
the  controverted  point  between  the  parties.  To  establish 
this  fact,  the  defendants  rely  upon  the  testimony  of  John 
L.  Ward.  lie  is  the  only  witness  that  testifies  upon  this 
point.  lie  is  a  defendant  in  the  suit,  and  was  examined 
under  an  order  of  the  court,  subject  to  any  exception  that 
might  be  taken  at  the  hearing. 

The  complainants  interpose  the  objection  to  his  evi- 
dence, that  he  is  not  a  competent  witness  on  account  of 
interest. 

In  looking  into  the  competency  of  this  witness,  it  is 
proper  to  remark,  that  there  is  no  question  between  the 
parties  as  to  Cook's  having  lost  his  priority  in  conse- 
quence of  any  mere  neglect  on  his  part  to  record  his  deed 
VOL.  ii.  L 


122  CASES  IN  CHANCERY. 


Blair  v.  Ward. 


with  proper  diligence.  When  Ward  executed  the  mort- 
gage to  the  complainants,  the  contract  between  Ward  and 
Cook  was  not  completed.  Cook  had  not  the  control  of 
his  deed,  so  as  to  have  it  in  his  power  to  record  it  until 
after  the  execution  of  the  mortgage.  If  Ward  when  he 
executed  the  mortgage  to  the  complainants,  did  not  no- 
tify them  of  the  deed  he  had  executed  to  Cook,  he  com- 
mitted a  fraud  in  executing  the  mortgage,  and  that  fraud 
operated  to  the  injury  of  Cook.  If  he  did  notify  the 
complainants,  then  their  lien  is  subject  to  Cook's  convey- 
ance. 

Under  these  circumstances,  is  Ward  interested  in  the 
event  of  this  suit  ?  If  the  complainant's  mortgage  is 
established  as  a  lien  upon  the  premises  embraced  in 
Cook's  deed,  then  Ward  is  liable  upon  his  warranty  to 
Cook.  But  if  the  complainants  are  not  successful,  Ward  is 
not  in  any  way  legally  responsible  to  them.  They  have 
got  his  mortgage,  but  it  is  without  covenants.  It  is  only 
as  collateral,  and  to  secure  any  deficiency  in  the  payment 
of  Sarah  Ward's  bonds.  John  L.  Ward  is  not  personally 
liable  for  any  such  deficiency.  He  did  not  guaranty 
the  bonds.  It  is  thus  apparent  that  it  is  Ward's  interest  to 
defeat  the  complainants  in  this  suit,  for  if  they  recover, 
it  involves  him  in  a  pecuniary  loss.  My  opinion  is  there- 
fore, that  Ward  is  interested  in  the  event  of  this  suit,  and 
is  not  a  competent  witness.  I  regret  this  conclusion,  be- 
cause my  mind  was  perfectly  satisfied  from  the  evidence 
of  Cook,  corroborated  by  circumstances  confirming  his 
evidence,  that  the  complainants  had  such  notice  of  Cook's 
conveyance,  that  they  should  not  be  permitted  to  enforce 
their  lien  against  the  premises  embraced  in  his  deed.  But 
satisfied,  as  I  am,  of  Ward's  incompetency  as  a  witness, 
I  have  no  option  as  to  the  admission  of  his  testimony. 
However  much  I  may  regret  the  effect  in  this  case,  a 
plain  rule  of  law  compels  me  to  reject  the  evidence  of 
the  witness. 

But  the  counsel   of  Thomas    Cook    insisted    that    the 


FEBEUAEY  TERM,  1854.  123 


Blair  r.  Ward.. 


equities  existing  between  these  parties  are  such,  that  the 
court  ought  not  to  permit  the  complainants  to  enforce  their 
mortgage  against  the  property  conveyed  to  Cook ;  that  the 
consideration  money  paid  by  Cook  was  appropriated  to  the 
payment  of  liens  having  priority  over  the  complainant's 
mortgage,  and  of  which  the  complainants  had  notice,  and 
subject  to  which  they  took  their  mortgage ;  that  the  com- 
plainant ought  not  to  have  the  benefit  of  Cook's  money  in 
paying  off  prior  encumbrances,  and  be  permitted  to  take 
the  land,  also,  to  pay  off  their  own.  The  facts  proved  are 
not  such  as  to  give  to  the  defendant,  Cook,  the  benefit  of 
the  argument.  It  is  rather  singular  that  Cook  did  not 
frame  his  answer  with  a  view  of  deriving  the  full  benefit  of 
this  feature  of  his  case,  if  the  facts  would  sustain  him.  I 
have  no  doubt,  from  what  is  before  me,  that  Cook  might 
have  put  in  a  defence,  and  proved  it,  so  as  to  have  secured 
the  full  benefit  of  this  argument.  But,  in  his  answer,  he 
neither  states  how  he  paid  the  purchase  money,  nor  for 
what  purpose  it  was  appropriated. 

Daniel  Crane  holds  a  mortgage  originally  executed  to 
secure  the  payment  of  $2000.  The  consideration  of  it 
was  for  money  loaned  to  Ichabod  C.  Ward,  the  father  of 
Thomas  L.  Ward.  At  the  time  of  its  execution,  the  title 
to  all  the  land  in  question  was  in  Ichabod  C.  Ward.  The 
complainants  admit,  in  their  bill,  that  they  knew  of  the 
Crane  mortgage,  and  took  their  mortgage  subject  to  that 
encumbrance.  The  purchase  money  agreed  to  be  paid 
by  Cook,  for  the  land  conveyed  to  him,  was  $1108.18.  He 
paid  in  cash  $608.18,  and  for  the  balance,  $500,  he  exe- 
cuted his  bond  to  Daniel  Crane,  and,  to  secure  it,  gave  a 
mortgage  upon  the  land.  As  to  this  $500,  the  equities 
between  the  parties  are  very  plain.  The  court  would 
never  permit  the  complainants  to  foreclose  their  mort- 
gage under  such  circumstances,  and  leave  Cook  to  pay 
his  bond  to  Crane,  and  thus  allow  the  complainants  the 
benefit  of  that  payment.  Crane  has  credited  this  $500 
on  his  bond  and  mortgage,  and,  in  consideration  of  it,  he 


124  CASES  IN  CHANCERY. 

Blair  t>.  Ward. 

executed  a  deed  of  release  to  Cook.  The  complainants  are 
not  entitled  to  the  benefit  of  this  release.  Daniel  Crane's 
mortgage  must  stand  for  its  full  amount  for  his  own  benefit, 
as  well  as  for  the  relief  of  Thomas  Cook.  This  is  equitable. 
The  complainants  have  no  right  to  complain  of  it,  for  they 
took  their  mortgage  subject  to  the  $2000  mortgage.  This 
matter  is  entirely  within  the  control  of  the  court,  and  they 
will  adjust  the  equities  between  the  parties.  The  com- 
plainants claim  the  land  as  their  own.  To  compel  Cook 
to  pay  the  purchase  money,  and  then  give  the  complainants 
the  land,  would  be  unjust,  and  in  violation  of  every  prin- 
ciple of  equity. 

As  to  the  $608.18,  the  cause  was  argued  upon  the  as- 
sumption that  this  money  was  appropriated  to  pay  off  the 
debts  of  Ichabod  C.  "Ward,  which  were  a  lien  upon  the 
mortgaged  premises  entitled  to  priority  over  the  com- 
plainants' mortgage.  It  was  insisted  that  to  this  amount 
Cook  should  be  substituted  in  the  place  of  those  cred- 
itors. Independent  of  the  consideration,  whether  the 
pleadings  are  so  framed  as  to  justify  the  court  in  making 
a  decree  in  conformity  with  this  view,  it  is  sufficient  to 
say,  that  there  is  no  evidence  to  show  that  there  were  any 
such  debts  which  were  a  lien  upon  the  premises.  And, 
besides,  it  is  not  shown  that  the  money  was  appropriated 
for  such  purpose.  Zenas  S.  Crane,  the  only  witness  who 
testified  touching  the  payment  of  the  money,  says  that 
he  counted  the  money  in  the  presence  of  Thomas  L.  "Ward 
and  Timothy  "Ward,  the  administrator,  and  that  it  was  paid 
to  one  of  them.  The  presumption  is,  that  the  money  was 
paid  to  Thomas  L.  "Ward,  and  there  is  no  evidence  to  rebut 
this  presumption.  I  am  of  opimon,  therefore,  that  the 
conveyance  to  Cook  is  subject  to  the  complainant's  mort- 
gage ;  but  that  the  mortgage  of  Daniel  Crane  must  stand 
for  its  full  amount,  so  as  to  relieve  Cook  from  the  payment 
of  his  bond  of  five  hundred  dollars,  which  is  held  against 
him  by  Daniel  Crane. 

If  the  view  I  have  taken  is  correct,  then  the  question 


FEBEUARY  TERM,  1854  125 


Blair  v.  Ward. 


as  to  the  effect  of  Daniel  Crane's  release,  as  between  him- 
self and  the  complainants,  is  of  no  moment.  But  as  this 
question  was  very  fully  discussed  upon  the  argument,  and 
the  parties  may  see  proper  to  take  the  opinion  of  another 
court  upon  the  case,  it  may  be  more  satisfactory  that  I 
should  give  my  judgment  on  this  question. 

Upon  the  assumption  that  Cook's  deed  is  valid  as 
against  the  complainants'  mortgage,  Daniel  Crane's  mort- 
gage covering  not  only  the  other  lands  embraced  in  the 
complainants'  mortgage,  but  the  premises  conveyed  to 
Cook,  it  is  insisted  that,  according  to  the  equities  existing 
between  these  mortgagees,  the  complainants  have  a  right 
to  throw  Crane's  mortgage  upon  Cook's  land,  before  Crane 
can  resort  for  payment  to  the  land  which  is  common  to 
both  mortgages;  and  that  Crane,  having  voluntarily  re- 
leased the  land,  which  was  exclusive  as  to  his  mortgage, 
he  has  thus  disturbed  the  equities  existing  between  the 
parties,  and,  as  a  consequence,  must  be  postponed  to  the 
value  of  the  land  released. 

The  general  principle  is  not  denied,  that  if  A,  as  the 
owner  of  100  acres  of  land,  mortgages  all  of  it  to  B.,  and 
subsequently  50  acres  of  it  to  C.,  A  will  be  compelled, 
by  a  court  of  equity,  to  resort  to  the  50  acres  not  em- 
braced in  C's  mortgage  before  he  can  have  recourse  to 
the  land  common  to  both  mortgages.  This  principle  of 
equity  is  not  confined  to  the  original  owner  and  his  im- 
mediate grantees,  but  is  applicable  to  all  future  aliena- 
tions of  the  land,  as  long  as  it  can  be  applied,  without  in- 
jury or  manifest  injustice,  to  any  of  the  parties  in  interest. 
It  follows,  that  if  any  of  the  parties  wrongfully  disturb 
these  equities,  so  as  to  deprive  another  of  his  just  rights, 
it  is  a  wrong  which  he  cannot  commit  with  impunity  ;  and 
a  Court  of  Chancery  will  adjust  the  equities  between  the 
parties,  whenever  it  attains  jurisdiction  so  as  to  enable  it 
to  do  so.  But  this  is  a  principle  of  equity  to  be  applied 
as  each  case  arises,  according  to  its  circumstances,  and  for 
the  purpose  of  doing  equity  between  the  parties.  It  is  not 


126  CASES  IN  CHAtfCEKY. 

Blair  v.  Ward. 

an  inflexible  rule  of  law,  which  a  party  has  a  right  to  ask 
may  be  applied  without  regard  to  the  circumstances  of  the 
case  or  its  consequences  upon  third  parties.  The  court  will 
never  put  in  jeopardy  the  interest  of  the  first  encum- 
brancer by  applying  this  principle.  It  will  refuse  to  do  so 
where  it  can  be  seen  that  such  will  be  Us  effect. 

Where  a  mortgagee  has  released  land  primarily  liable 
for  his  debt,  to  the  prejudice  of  another  mortgagee,  who 
has  a  lien  upon  part  only  of  the  lands  embraced  in  the 
first  mortgage,  the  court  may  prevent  the  first  mortgagee 
from  enforcing  his  mortgage  upon  the  portion  of  the 
lands  common  to  both  mortgages  until  he  deducts  from  his 
debt  the  value  of  the  land  released.  But  the  mortgagee 
will  not  be  liable  to  such  consequences,  unless  he  has 
knowingly  and  wrongfully  prejudiced  the  rights  of  the 
other  mortgagee.  He  must  have  knowledge  of  the  other 
mortgagee's  rights.  If  he  releases  without  notice,  he  is 
not  to  be  a  sufferer.  If  the  other  mortgagee  wishes  to 
protect  himself,  he  must  give  notice  of  his  rights.  The 
counsel  of  the  complainants  insisted  that  the  record  fur- 
nished him  with  such  notice.  But  the  statute  does  not 
make  the  record  notice  for  any  such  purpose,  nor  is  it  rea- 
sonable that  it  should  be  noticed.  If  this  is  so,  every  mort- 
gagee, before  he  takes  a  step  to  secure  his  own  rights, 
must  resort  to  a  search  of  the  record  to  ascertain  how  his 
act  will  affect  the  rights  and  interest  of  others.  I  can  find 
no  case  going  to  this  extent.  In  Guion  and  others  v.  Knapp 
and  others,  6  Paige  43,  the  Chancellor  says,  the  conscience 
of  the  party  who  holds  the  encumbrance  is  not  affected, 
unless  he  is  informed  of  the  existence  of  the  facts  upon 
which  this  equitable  right  depends ;  or  he  has  a  sufficient 
notice  of  the  probable  existence  of  the  right  to  make  it 
'his  duty  to  inquire,  for  the  purpose  of  ascertaining  whe- 
ther such  equitable  right  does  in  fact  exist.  If,  therefore 
the  prior  purchasers  are  so  negligent  as  to  leave  the  holdei 
of  the  encumbrance  to  deal  with  the  mortgagor,  or  with 
a  subsequent  grantee  of  a  portion  of  the  premises,  undei 


FEBRUARY  TERM,  1854.  127 


Blair .»  Ward. 


the  erroneous  supposition  that  the  lands  conveyed  to  the 
prior  purchasers  still  belongs  to  the  mortgager,  the  mort- 
gagee will  not  lose  his  lien  by  executing  a  release  to  one 
who  happens  to  be  a  subsequent  grantee.  In  the  case  of 
CJieesebormtgh  v.  MUlard  1  J.  C.  R.  414,  where  a  judgment 
creditor  claimed  this  equity  against  a  mortgagee  who  had 
released,  Chancellor  Kent  says  the  mortgagees  were  not 
hound  to  search  for  the  judgment,  and  the  record  was  no 
constructive  notice  to  them ;  and  as  this  rule  of  substitu- 
tion rests  on  the  basis  of  mere  equity  and  benevolence 
the  creditor  who  has  thus  disabled  himself  from  making 
it  is  not  to  be  injured  thereby,  provided  he  acted  without 
knowledge  of  the  other's  rights,  and  with  good  faith  and 
just  intention,  which  is  all  that  equity  in  such  case  re- 
quires. 

In  the  present  case,  the  bill  does  not  charge  that  Daniel 
Crane  had  notice  of  the  complainant's  mortgage.  The 
circumstances  attending  the  transaction  in  regard  to  his 
release  were  not  such  as  to  put  any  prudent  man  upon 
inquiry  to  ascertain  whether  there  were  subsequent  en- 
cumbrancers, whose  rights  would  be  prejudiced  by  his  re- 
lease. On  the  contrary,  they  were  such  as  would  reason- 
ably lead  him  to  the  conclusion  that  no  one  could  be  pre- 
judicially affected  by  his  act.  I  do  not  think  that  the  re- 
lease should  operate  in  any  manner,  to  the  embarrassment 
or  injury  of  Daniel  Crane's  rights  under  his  mortgage. 

Let  there  be  a  reference  to  a  master,  to  take  an  account 
of  what  is  due  on  Daniel  Crane's  mortgage,  without  de- 
ducting the  §500  bond  and  mortgage  «credited  as  a  pay- 
ment on  his  bond ;  and  also  to  take  an  account  of  the 
amount  due  on  the  complainant's  mortgage.  And  let  the 
decree  be  so  drawn  as  to  sell  the  land  conveyed  to  Cook, 
to  make  up  any  deficiency  after  the  sale  of  the  other  lands 
embraced  in  the  mortgages. 

CITED  m  Vanorden  v.  Johnson,  1  3/cCar,  878  ;  Hoy  v.  Bramhall,  4  C.  S. 
Or.  571;  Ward's  Exr's.  v.  Hvyve,  10  C.  E.  Gr.  3U8 ;  Hilis  Admr'*,  v. 
McCarter,  12  C.  E.  Or.  47. 


CASES 

ADJUDGED  EC 

THE   COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW  JERSEY, 

MAY  TEEM,  1854. 


SAMUEL  S.  HAKTWELL  vs.  ALBEKT  CAMMAN  and  others. 

A  deed  may  convey  a  distinct  inheritance  in  mines,  the  fee  to  the  land  remain- 
ing in  the  grantor.  When  not  severed  from  the  general  title  to  the  lands, 
they  will  pass  with  the  lands  without  being  expressly  mentioned  in  the  deed. 

Construction  of  a  deed  conveying  mines  and  minerals,  and  the  respective 
rights  of  grantor  and  grantee. 

By  a  conveyance  of  "mines  and  minerals"  the  grant  does  not  embrace  any- 
thing in  the  mineral  kingdom,  as  distinguished  from  what  belongs  to  the  ani- 
mal and  vegetable  ;  nor  is  such  a  grant  confined  to  any  one  of  the  subordi- 
nate divisions  into  which  the  mineral  kingdom  is  subdivided  by  chemists. 

Where  a  term  of  art  is  used  which  has  a  popular  signification  among  scientific 
men,.paro£  testimony  is  admissible  to  ascertain  the  technical  and  proper  use 
of  the  term,  but  such  testimony  is  not  admissible  to  show  that  the  parties 
to  the  writing  placed  upon  the  term  used  any  limited  or  definite  mean- 
ing. 

When  parol  testimony  admissible  to  dispel  a  doubt  upon  the  true  sense  and 
meaning  of  the  words.  Broom's  Maxims. 

Parol  testimony  sometimes  admitted  ex  necessitate,  and  when  the  ambiguity 
in  an  instrument  is  created  by  extrinsic  evidence,  it  may  be  removed  by  the 
same. 

Apaint  stone,  which  is  found  in  strata  below  the  surface  of  the  soil,  and  dis- 
tinct from  the  ordinary  earth,  and  worked  by  the  ordinary  means  of  min- 
ing, will  pass  under  the  terms  mines  and  minerals. 


MAY  TEEM,  1854.  129 


Hartwell  v.  Camman. 


The  bill  alleges,  that  one  Thomas  A.  Hartwell  did,  by 
deed  dated  on  the  2d  of  February,  1846,  convey  to  Albert 
Camman  certain  mining  rights  and  interest  in  certain  pre- 
mises in  said  deed  described,  and  that  T.  A.  H.,  on  the  23d 
of  June,  1847,  by  deed  of  that  date,  did  sell  and  convey  to 
the  complainant  and  to  his  heirs  and  assigns  for  ever  the 
same  tract  of  land  with  full  warranty,  excepting  out  of  the 
same  the  right  of  mining  so  conveyed  to  the  said  A.  C.; 
that  previous  to  this  conveyance,  there  had  been  many  ex- 
periments made  for  copper  ore,  supposed  to  abound  in  the 
premises ;  that  shafts  had  been  sunk  and  worked  for  cop- 
per ore  within  a  few  hundred  yards,  and  that  no  other 
mineral  had  been  sought  for  on  the  said  premises ;  that 
the  said  conveyance  from  T.  A.  H.  to  A.  C.  was  made  in 
contemplation  of,  and  with  reference  to  the  character  of 
the  range  of  hills  as  a  deposit  of  copper  ore  ;  that  in  the 
latter  part  of  the  year  1850,  the  said  A.  C.  discovered  upon 
the  surface,  and  just  below  it,  a  hard  substance  like  red 
shale  ;  that  he  had  it  analyzed,  and  in  December,  1851, 
commenced  digging  and  excavating  said  substance,  and 
grinding  the  same  into  paint,  and  disposing  of  the  same  ; 
that  said  C.  procured  the  stock  of  a  company,  called  the 
South  Branch  Mining  Company,  and,  on  the  17th  of  Sep- 
tember, 1851,  conveyed  to  the  said  company  all  his  mining 
rights  in  the  premises  aforesaid,  and  afterwards  obtained 
from  the  legislature  a  change  of  the  name  of  the  said  com- 
pany to  that  of  "  the  President  and  Directors  of  the  Bridge- 
water  Paint  Manufacturing  Company  ";  that  the  said  com- 
pany have  dug  out,  and  ground  into  paint,  and  sold  large 
quantities  of  the  same,  and  threaten  to  continue  said 
operations.  The  prayer  is,  that  the  said  defendants  may  bo 
restrained  by  injunction  from  digging  and  removing  from 
off  the  said  premiies  the  said  stone  from  which  paint  is 
manufactured,  or  for  any  other  purpose,  save  in  such  in- 
considerable quantities  as  might  be  necessary  and  inci- 
dental to  ordinary  mining  for  ores  and  minerals,  usually 
and  properly  so  called  ;  and  that  they  may  be  distrained 


130  CASES  IN  CHANCERY. 

Hartwell  v.  Camman. 

from  disfiguring  and  destroying  the  surface  of  the  said 
premises  to  any  greater  extent  than  would  be  proper  and 
necessary  in  mining  for  such  minerals  and  ores. 

To  this  bill,  the  defendants  filed  a  joint  and  several 
answer.  The  principal  allegations  of  the  bill  are  admitted, 
except  that  Camman  denies  that  at  the  time  of  his  pur- 
chase he  had  in  contemplation  copper  ore  only,  or  any 
particular  mineral.  And  the  answer  insists  that  this  paint 
stone  is  a  mineral  within  the  meaning  of  the  term,  as  it 
is  used  in  the  deed.  The  answer  further  alleges,  that  the 
excavating  of  this  material  has  been  carried  on  with  the 
consent  of  the  complainant ;  that  he  aided  in  the  organ- 
ization of  the  company,  and  became  an  original  stock- 
holder to  the  amount  of  fifty  shares,  which  stock  he  still 
retains. 

On  filing  the  bill,  a  temporary  injunction  was  granted 
by  the  master,  which  was  dissolved  upon  the  coming  in  of 
the  answer  on  motion. 

Both  parties  having  taken  their  proof,  the  cause  came  up 
for  final  hearing. 

Gorton  and  W.  L.  Dayton,  for  complainant. 
G.  II.  Brown  and  J.  S.  JVevius,  for  defendants. 

THE  CHANCELLOR.  As  to  the  construction  of  the  deed 
from  Thomas  A.  Hartwell  to  Alfred  Camman,  in  refer- 
ence to  the  interest  which  passed  to  the  grantee,  I  have  no 
doubt  it  was  intended  to  convey  to  Camman  an  estate 
of  inheritance  in  the  mines.  The  words  used  are  appro- 
priate to  the  conveyance  of  such  an  estate,  and  such  is 
the  legal  construction  to  be  put  upon  the  instrument. 
Such  an  estate  in  Camman  is  not  inconsistent  with  the 
general  title  to  the  lands  in  which  the  mines  are  situated 
remaining  in  Hartwell,  the  grantor.  The  mines  may  form 
a  distinct  possession,  or  inheritance,  from  the  lands.  They 
are  capable  of  living,  and  of  being  made  the  subject  of 


MAY  TEEM,  1854.  131 


Hartwell  v.  Camman. 


ejectment.  Comyn  v.  Kyneto,  Cro.  Jac.  150 ;  Barnes  v. 
Mawson,  1  Maul  and  S.  77.  When  not  thus  severed  from 
the  general  title  of  the  lands  in  which  they  are  situate, 
they  are  part  of  the  lands  or  demesnes  themselves,  and 
will  pass  with  the  lands,  without  being  expressly  men- 
tioned in  the  conveyance.  The  deed  under  consideration 
is  in  the  usual  form  of  a  deed  of  bargain  and  sale.  Tn 
the  premises  of  the  deed,  the  language  of  the  grant,  and 
description  of  the  thing  granted,  is  "doth  give,  grant, 
bargain,  sell,  and  convey,  unto  the  said  party  of  the  sec- 
ond part,  his  heirs  and  assigns  for  ever,  the  right,  title, 
and  interest  in  and  to  all  mines  and  minerals  opened,  or 
to  be  opened,  with  free  ingress  and  egress  to  the  same  for 
the  purpose  of  mining  in  all  its  various  branches,  of,  in, 
and  to  the  following  described  tract  of  land,"  &c.  The 
language  of  the  habendum  and  tenendum  is  as  follows : 
"  To  have  and  to  hold  all  and  singulai  the  interests,  rights, 
and  privilege  of  mining  in  and  to  the  said  lands  and  prem- 
ises unto  him,  the  said  Albert  Camman,  his  heirs  and 
assigns  for  ever."  Then  the  covenants,  that  the  grantor 
is  the  rightful  owner ;  that  the  premises  are  unencum- 
bered ;  that  the  grantor  hath  full  power  to  grant,  and 
that  he  will  warrant  and  defend.  Then  follows  this  ex- 
planation or  qualification  :  "  This  agreement  and  this  con- 
veyance is  upon  this  condition,  that  the  said  second  party 
is  not  to  have  any  right  or  privilege  to  said  premises, 
other  than  for  general  mining  purposes ;  that  neither  said 
second  party,  his  heirs  or  assigns,  shall  cut,  damage,  or 
destroy  any  wood  or  timber  on  said  premises,  except  it 
shall  be  actually  necessary  so  to  do  for  mining  purposes, 
and  in  that  case  to  pay  a  reasonable  compensation  to  the 
said  party  of  the  first  part,  his  heirs  and  assigns,  for  tho 
same."  This  condition,  as  it  is  called,  neither  contradicts, 
or  is  it  repugnant  to  the  estate  before  granted.  The  estate 
was  clearly  one  of  fee  simple  in  the  mines.  The  condi- 
tion neither  lessened,  enlarged,  or  qualified  that  estate. 
It  was  nothing  more  than  a  further  expression  of  tho 


132  CASES  IN  CHANCERY. 

Hartwell  v.  Caminan. 

intention  of  the  parties,  that  nothing  was  intended  to 
pass  by  the  deed  except  the  "  mines  and  •  minerals,"  and 
that  the  general  title  to  the  lands  remained  in  the 
grantor. 

Albert  Caminan  subsequently  conveyed  the  estate 
which  he  took  in  the  mines  and  minerals  to  the  defend- 
ants, "  the  President  and  Directors  of  the  Bridgewater 
Paint  Manufacturing  Company,"  and  they  are  now  en- 
titled to  the  enjoyment  and  to  all  the  benefits  of  that 
estate. 

If  such  be  the  correct  construction  of  the  deed,  then 
the  position  taken  by  the  defendants'  counsel,  that  Thomas 
A.  Hartwell  retained  no  further  or  other  interest  in  the 
land  except  that  reserved  to  him  as  to  the  wood  and  tim- 
ber, and  that  he,  or  his  assignee,  has  no  right  to  carry 
away  from  off  the  land  for  his  own  benefit,  this  substance 
which  has  given  rise  to  this  controversy,  even  if  it  is  not 
embraced,  in  what  was  conveyed  to  Camman,  cannot  be 
maintained.  Camman  took  the  estate  in  all  the  mines  and 
minerals,  and  has  a  right  to  the  possession  of  them  and  to 
their  enjoyment,  and  to  anything  necessary  and  incidental 
to  that  enjoyment.  The  title  to  the  lands  where  those 
"  mines  and  minerals  "  are  found  remained  in  Hartwell, 
and  he  and  his  assignee  are  entitled  to  the  enjoyment  of 
everything  else  appertaining  to  those  lands  except  the 
"  mines  and  minerals."  If  the  material,  then,  which  the 
defendants  are  carrying  away,  and  converting  to  their 
own  use,  is  a  "  mineral "  which  passed  by  the  deed,  the 
complainant  cannot  interfere  with  the  right  of  ownership 
which  the  defendants  are  exercising.  If  it  is  not  a  "  min- 
eral," in  the  sense  intended  by  the  parties,  then  the  com- 
plainant has  rightfully  invoked  the  aid  of  this  court,  and 
he  himself  is  entitled  to  the  enjoyment  of  the  material, 
and  may  enter  upon  the  land,  and  collect  and  convert  the 
material  in  it  to  his  own  exclusive  use. 

Did  this  material  pass  with  the  estate  conveyed  to 
Camman  ?  If  it  is  embraced  within  the  terms  "  mines 
and  minerals  "  it  did,  otherwise  it  did  not. 


MAY  TEEM,  1854.  133 


Hartwell  v.  Camman. 


I  admit  that  I  have  experienced  very  great  embarrass- 
ment in  giving  an  answer  to  this  question  satisfactory  to 
myself.  Perplexed  with  doubts,  I  found  I  could  only  ex- 
tricate myself  from  difficulty  by  making  most  of  the 
maxim,  "  The  words  of  an  instrument  shall  be  taken 
most  strongly  against  the  party  employing  them."  Co. 
Litt.  36,  a. 

By  the  use  of  the  terms  "  mines  and  minerals,"  it  is  clear 
the  grantor  did  not  intend  to  include  everything  embraced 
in  the  mineral  kingdom,  as  distinguished  from  what  be- 
longs to  the  animal  and  vegetable  kingdoms.  If  he  did, 
he  parted  with  the  soil  itself.  Such  a  construction  would 
be  inconsistent  with,  and  repugnant  to  the  whole  tenor  of 
the  grant.  Nor  can  I  see  any  more  propriety  in  confining 
the  meaning  of  the  terms  used  to  any  one  of  the  subordi- 
nate divisions  into  which  the  mineral  kingdom  has  been 
subdivided  by  chemists,  either  earthly,  metallic,  saline,  or 
bituminous  minerals.  By  his  bill,  to  complainant  en- 
deavors to  confine  the  terms  to  a  more  restricted  sense,  or 
definition,  than  either  one  of  these  subordinates ;  for  he 
claims  a  construction  should  be  put  upon  the  words,  by 
the  aid  of  circumstances  surrounding  the  parties,  and  re- 
lating to  the  subject  matter  of  the  grant  at  the  time  the 
grant  was  made ;  and  by  a  construction  thus  derived,  he 
confines  the  terms  not  to  the  metallic*  ores,  but,  more  lim- 
ited still,  to  copper  ore  alone. 

As  to  the  extent  to  which  parol  testimony  is  admissible 
in  giving  an  interpretation,  or  proper  definition,  to  the 
words  used  here,  I  have  no  difficulty.  Where  a  tenn  of 
art  is  employed,  or  a  word  connected  with  some  depart- 
ment of  the  natural  world,  which  has  become  technical 
and  popular  in  its  use  among  scientific  men  and  men  of 
letters,  a  court,  when  called  upon  to  give  a  construction 
to  such  words,  may  avail  itself  of  parol  testimony  to  as- 
certain the  technical  and  popular  use  of  the  word.  But 
parol  testimony  is  not  admissible,  under  any  circum- 
stances, to  show  that  the  parties  to  an  instrument  of  writ- 

VOT.  u.  M 


134  CASES  IN  CHANCEKY. 


Hartwell  v.  Camman. 


ing  under  seal  placed  upon  a  particular  word  or  phrase 
ology  which  controls  the  whole  effect  and  value  of  the 
writing,  any  limited  or  definite  meaning  for  the  purposes 
of  that  particular  instrument.  Where  the  construction 
depends  upon  the  definition  to  be  given  to  any  particular 
words,  and  there  is  an  ambiguity  created  from  the  man- 
ner of  their  use,  and  in  such  use  the  words  cannot  be  said 
to  have  any  popular  or  technical  scientific  moaning,  or 
the  learned  differ  as  to  such  meaning,  then  the  only  re- 
course left  is  to  adot>t  the  next  most  comprehensive  mean- 
ing not  excluded  by  the  expressed  or  plain  intention  of 
the  parties.  This  is  a  salutary  mode  of  construction,  for, 
as  Mr.  J.  Blackstone  remarks,  the  principal  of  self-preser- 
vation will  make  men  sufficiently  careful  not  to  prejudice 
their  own  interest  by  the  too  extensive  meaning  of  their 
words,  and  hereby  all  manner  of  deceit  in  any  grant  is 
avoided ;  for  men  would  always  affect  ambiguous  and  in- 
tricate expressions,  provided  they  were  afterwards  at 
liberty  to  put  their  own  construction  upon  them.  2  Bid. 
Com.  380.  No  extrinsic  evidence  is  admissible  for  the  pur- 
pose of  showing  that  the  grantor  intended  to  confine  the 
words  "  mines  and  minerals  "  to  copper  ore  only.  If  the 
grantor  can  do  this,  then  it  follows  he  may,  by  parol  evi- 
dence, show  that  the  parties  fixed  an  arbitrary  meaning  to 
words  upon  which  tne  whole  efficacy  of  the  deed  depends, 
contrary  to  their  natural  and  ordinary  import  and  popular 
acceptation.  But  the  complainant  may  introduce  parol 
evidence  to  show  the  scientific  and  popular  meaning  of 
the  words  "mines  and  minerals"  under  an  exception  to 
the  general  rule.  Where  any  doubt  arises  upon  the  true 
sense  and  meaning  of  the  words  themselves,  or  any  diffi- 
culty as  to  their  application  under  the  surrounding  circum- 
stances, the  sense  and  meaning  of  the  language  may  be 
investigated  and  ascertained  by  evidence  deJwrs  the  in- 
strument itself ;  for  both  reason  and  common  sense  agree 
that  by  no  other  means  can  the  language  of  the  instru- 
ment be  made  to  speak  the  real  mind  of  the  party.  Brooirts 
Legal  Maxims  266. 


MAY  TEEM,  1854.  135 


Hartwell  v.  Caruman. 


In  this  case  parol  evidence  is  admissible  ex  necessitate. 
The  ambiguity  is  created  by  extrinsic  evidence,  and  it 
may  be  removed  in  the  same  manner.  The  allegation  is, 
that  the  defendants  are  removing  from  the  complainant's 
soil  a  particular  substance  or  material.  The  answer  is, 
that  the  defendants  have  a  right  to  remove  it,  because  it 
was  conveyed  to  them  under  the  terms  "  mines  and  min- 
erals." The  complainant  rejoins,  that  those  terms  did  not? 
include  the  substance  in  question.  The  parties  must 
therefore  give  evidence  as  to  the  character  of  the  material, 
and  they  may  show  that  it  is  or  is  not  embraced  in  the 
scientific  and  popular  use  of  the  terms  employed  by  the 
grantor. 

The  character  of  the  substance,  or  stone  paint,  as  the  wit- 
nesses call  it,  is  given  in  the  bill,  and  the  correctness  of  the 
description  there  given  is  admitted  by  the  answer,  and  con- 
firmed by  the  evidence.  It  is  a  substance  resembling  in  gen- 
eral appearance  red  shale,  so  soft  as  to  be  easily  cut  with  a 
knife  when  first  excavated,  but  differing  in  appearance  and 
quality  from  the  surrounding  earth.  It  is  found  in  irregular 
strata,  or  boulders  of  various  sizes.  It  hardens  when  exposed 
to  the  air,  and  when  broken  up  and  ground  it  is  used  as 
a  paint,  and  is  valuable  for  that  purpose.  The  manner  in 
which  it  is  procured  from  the  earth,  and  its  particular  loca- 
tion below  the  surface,  are  particularly  described  by  a  wit- 
ness, who  was  the  foreman  in  carrying  on  the  works.  They 
commenced  working  in  an  old  shaft,  which  had  been  used 
for  raising  copper  ore.  As  they  proceeded  with  the  excava- 
tion, the  dip  of  the  paint  stone  was  about  one  foot  in  eight 
or  ten,  perhaps  a  litttle  more.  At  the  point  of  the  pit  oppo- 
site to  the  side  at  which  the  excavation  was  commenced  the 
paint  stone  was  from  eighteen  to  twenty  feet  from  tho 
surface  of  the  earth.  The  work  was  carried  on  by  making 
regular  mine  shafts  of  timber,  one  of  which  was  extended 
about  fifty-six  feet  in  length,  and  penetrated  aboil*  twelve 
feet  in  the  mountain  beyond  the  open  pit.  Other  pits  were 
made  very  similar  in  character.  The  stratum  of  the  paint 


136  CASES  IN  CHAJSCEKY. 

Hartwell  v.  Common. 

stone  in  the  largest  pit  was  found  to  vary  from  six  to  fifteen 
feet  in  thickness.  The  stratum  was  uniform,  increasing 
in  thickness  as  progress  was  made  into  the  mountain.  It 
does  not  crumble  like  red  shale,  but  goes  of  in  square 
pieces.  It  is  ground  in  a  mill,  and  is  then  fit  for  use,  as 
a  paint,  by  mixing  it  with  oil.  Its  value  is  from  twenty 
to  thirty  dollars  per  ton. 

Professor  Doremus  is  the  only  scientific  witness  exam- 
ined. He  says,  "  it  may  be  called  an  argillaceous  sandstone, 
allumina  and  silica  being  the  prominent  ingredients — it  is 
not  an  ore  of  iron.  This  comes  under  the  head  of  argilla- 
ceous rocks.  I  wish  to  distinguinsh  these  classes  from 
ores  or  metalliferous  rocks.  The  position  of  this  paint 
material,  as  it  lies  in  the  mountain,  is  not  in  veins,  but  in 
strata.  The  extracting  of  this  material,  as  I  saw  it  there, 
would  not  be  called  mining." 

1  think  I  have  extracted  all  the  facts  from  the  whole 
case  which  can  shed  any  light  upon  this  investigation. 
The  analysis  only  establishes  the  fact,  that  this  is  not  a 
metalliferous  ore.  If  the  terms  " mines  and  'minerals" 
used  in  the  deed,  could,  by  any  fair  construction,  -be  con- 
Ined  to  metallic  substances,  the  question  involved  would 
be  of  easy  solution ;  for  the  metallic  property  found  in 
this  paint  stone  is  so  small,  that  for  the  purpose  of  ex- 
tracting the  metal  is  of  no  value.  But  I  do  not  think 
the  terms  should  be  confined  to  the  metals  or  to  metallic 
ores.  I  cannot  doubt,  if  a  strata  of  salt,  or  even  a  bed  of 
coal  had  been  found,  they  would  have  passed  under  this 
grant. 

Can  this  stone  paint,  then,  be  fairly  and  naturally  em 
braced  in  the  term  "  mineral  ?"  It  is  a  body  \vhich  is  des- 
titute of  organization,  and  which  naturally  exists  within 
the  earth.  It  is  below  the  surface;  distinct  from  the  ordi 
nary  earth.  It  is  in  strata,  and  is  worked  by  the  ordinary 
means  of  mining.  And  although  Professor  Doremus  says 
that  it  is  not  in  veins,  but  in  strata,  and  that  he  would  not 
call  the  mode  of  extracting  it  mining,  yet  this  test  of  his 


MAY  TEEM,  1854.  137 


Hartwell  v.  Camman. 


would  exclude  salt  from  the  class  of  minerals ;  for  salt, 
too,  is  found  in  strata,  and  not  in  veins,  and  is  obtained  by 
shafts,  and  by  the  same  mode  of  operation  by  which  this 
material  is  extracted  from  the  earth.  It  is  valuable  for  its 
mineral  properties,  and,  by  a  cheap  and  easy  process  of 
grinding,  is  converted  into  a  merchantable  article  adapted 
to  the  mechanical  and  ornamental  arts.  It  is  embraced  in 
the  definition  given  by  men  of  science  to  the  term  min- 
eral." In  BakeweWs  Mineralogy,  page  7,  it  is  said  "  the 
term  mineral,  in  common  life,  is  generally  applied  to  de- 
note substances  dug  out  of  the  earth  or  obtained  from 
mines."  In  CleavelancTs  Mineralogy,  page  1,  the  defini- 
tion is  given  thus  :  "  Minerals  are  those  bodies  which  are 
destitute  of  organization,  and  which  naturally  exist  within 
the  earth  or  at  its  surface."  My  conclusion  is,  that  this 
paint  stone  passed  by  the  grant,  and  that  the  defendants 
have  a  right  to  excavate  and  remove  it,  and  to  convert  it  to 
their  own  use. 

The  position  which  the  complainant  occupies  in  this 
cause  before  the  court,  is  one  which  entitles  him  to  no- 
thing more  than  strict  right.  The  defendants,  "  the  Pre- 
sident and  Directors  of  the  Bridgewater  Paint  Manufac- 
turing Company,"  were  organized  for  the  very  purpose  of 
procuring  this  paint  stone  from  the  premises  and  prepar- 
ing it  for  market.  Camman  conveyed  to  them,  for  these 
purposes,  the  estate  which  had  been  granted  to  him  by 
Thomas  A.  Hartwell.  The  general  title  to  the  land  had 
been  conveyed  by  Thomas  A.  Hartwell  to  the  complain- 
ant, Samuel  Swan  Hartwell.  The  complainant  became  an 
original  stockholder,  to  the  amount  of  fifty  shares,  in  the 
company,  and  still  continues  to  hold  those  shares.  At  the 
commencement  of  the  undertaking,  it  was  a  matter  of 
doubtful  experiment  whether  this  paint  stone  could  be 
made  a  valuable  article  of  merchandise.  AVhile  a  matter 
of  uncertainty,  this  complainant  was  a  partner,  contribut- 
ing himself  and  in  encouraging  others  to  contribute,  to 
do  that  which  he  now  complains  is  an  invasion  of  his  free- 

M* 


138  CASES  EsT  CHAKCEEY. 

• 

Yule  v.  Yule. 

hold.  Tie  gave  a  construction  to  the  grant  by  his  own 
acts,  and  encouraged  others  to  expend  their  money  to  make 
this  property  valuable. 

There  is  another  ground  upon -which  the  complainant 
asks  the  interference  of  the  court  on  his  behalf.  He  com- 
plains that  the  defendants  are  disfiguring,  removing,  and 
destroying  the  surface  of  the  premises  to  a  greater  extent 
than  is  necessary  for  proper  and  ordinary  mining  pur- 
poses. The  evidence  does  not  sustain  the  allegation. 
Only  one-third  of  an  acre  of  the  surface  of  the  ground 
has  been  removed.  The  value  of  the  land  damaged  is 
about  eighty-three  cents,  and  that  of  the  wood  about  three 
dollars. 

The  bill  must  be  dismissed  with  costs. 


MAEY  YULE  vs.  PETER  YULE. 

Upon  a  bill  filed  for  alimony  only,  the  court  may  make  an  order  for  a  ne 
exeat  before  alimony  is  fixed. 

Th«  affidavit  of  the  wife  alone  is  sufficient  to  support  the  order. 

The  affidavit  need  not  state,  in  so  many  words,  that  the  defendant  is  about 
leaving  the  state  to  avoid  the  jurisdiction  of  the  court;  it  is  sufficient,  it 
the  facts  seem  to  show  that  the  defendant's  departure  will  defeat  the  com- 
plainant's claim,  or  that  the  defendant  is  leaving  the  state  for  that  purpose. 

The  affidavit  should  show  that  the  defendant  intends  going  abroad.  It  must 
be  positive  as  to  this  point,  or  to  his  threats  or  declarations  to  that  effect, 
or  to  facts  evincing  it,  or  circumstances  amounting  to  it. 

In  some  cases  it  will  be  sufficient  if  the  intention  of  the  defendant's  going 
abroad  is  sworn  to  upon  information  and  belief;  but  the  writ  should  not  be 
issued  in  a  doubtful  case.  The  debt,  or,  in  a  case  between  husband  and 
wife,  the  duty,  should  be  certain. 

The  husband  was  about  moving  from  Newark  to  the  city  of  New  York,  and 
upon  his  insisting  that  the  wife  should  go  with  him,  she  left  her  husband's 
house,  and  filed  her  bill.  She  is  not  entitled  to  select  her  own  place  of 
residence,  and  under  such  circumstances  to  an  order  for  alimony. 

The  Court  of  Chancery  has  no  power  to  decree  alimony,  except  as  incident 
to  divorce,  except  in  the  single  case  provided  for  by  the  10th  section  of  the 
statute. 


MAY  TEEM,  1854.  139 

Yule  v.  Yule. 

The  complainant's  bill  is  for  alimony.  On  filing  the 
bill,  an  order  for  a  tie  exeat  was  made.  •  The  defendant  an- 
swered the  bill.  Mr.  Keasbey,  for  the  complainant,  now 
moved  to  discharge  the  order  for  ne  exeat  upon  the  follow- 
ing grounds. 

First.  Ne  exeat  will  not  be  allowed  until  aKniony  fixed. 
Coglar  v.  Coglar,  1  Ves.  94 ;  Shaftoe  v.  Shaftoe,  7  Ves.  171 ; 
Dawson  v.  Dawson,  Ib.  173. 

Second.  The  affidavit  is  insufficient,  inasmuch  as  it  is 
only  made  by  the  wife,  and  that  upon  belief  merely,  and 
does  Jiot  attest  that  the  defendant  is  about  departing  the 
state  of  New  Jersey  in  order  to  avoid  the  jurisdiction  of  the 
court.  JZtches  v.  Lance,  7  Ves.  jun.  417 ;  Jones  v.  Alephsin, 
16  Ves.  470 ;  Arnsink  v.  HarJday,  8  Ves.  599 ;  Sedwick  v. 
Watkins,  1  Ves.  49. 

Third.  The  answer  is  a  denial  of  the  allegations  upon 
which  the  order  was  made. 

Fourth.  This  is  a  bill  for  alimony  only,  based  upon  cruel 
treatment.  There  is  no  prayer  for  divorce.  The  bill  can- 
not be  sustained.  Laws  of  N.  J.  924,  §  10. 

Mr.  Bradley,  in  reply,  cited  Denton  v.  Denton,  1  J.  C. 
R.  364,  441 ;  Gilbert,  administrator,  and  Mary  E.  Laineer, 
v.  Colt,  1  Hopk.  496 ;  Mitchell  v.  Brench,  2  Paige  617 ; 
Hoffman's  Ch.  P.  96  ;  1  Barl.  C.  P.  655. 

TUB  CHANCELLOR.  Mary  Yule  filed  this  bill  against  her 
husband,  Peter  Yule,  for  alimony.  It  is  a  bill  for  alimony 
only ;  there  is  no  prayer  for  divorce.  The  bill  prays  for  a 
ne  exeat.  There  is  no  affidavit  annexed  to  the  bill,  except 
an  application  for  the  order  of  ne  exeat  was  made.  To  sup- 
port the  motion,  the  bill  and  the  annexed  affidavit  was 
relied  upon.  A  ne  exeat  was  ordered.  The  defendant  has 
answered  the  bill,  and  now  moves  to  discharge  the  order. 

Several  grounds  are  relied  upon  to  sustain  the  motion. 

First.  That  the  complainant  is  not  entitled  to  the  writ 
intil  alimony  is  fixed.  The  authorities  referred  to,  Cogler 


140  CASES  IN  CHANCEKY. 

Yule  v.  Yule. 

v.  Colger,  1  Ves.  jun.  94 ;  Shaftoe  v.  Shaftoe,  1  Ves.  171 ; 
and  Dawson  v.  Da&son,  Jo.  173,  very  fully  sustained  this 
objection.  But  in  Denton  v.  Denton,  1  J.  C.  JR.  364,  the 
Chancellor,  upon  the  exparte  application  of  the  wife,  or- 
dered a  ne  exeat  prior  to  a  decree  for  alimony.  And  upon 
an  application  to  discharge  the  order  (1  J.  C.  J%.  441) 
upon  this  ground,  the  Chancellor  reviewed  the  above,  and 
other  authorities,  relied  upon  to  sustain  the  objection, 
and  overruled  them,  after  examining  the  principles  upon 
which  the  decisions  were  put.  The  Court  of  Chancery, 
in  this  state,  has  uniformly  followed  the  decision  of  Denton 
v.  Denton,  and  the  question  must  be  considered,  therefore, 
as  settled. 

Second.  It  is  objected  that  the  affidavit  of  the  wife,  as 
to  the  intention  of  the  husband's  leaving  the  state,  is  in- 
sufficient; that  the  affidavit  is  founded  upon  her  belief 
only ;  and  it  is  further  objected,  that  the  affidavit  of  the 
wife,  alone,  is  not  sufficient  to  warrant  an  order  for  the 
writ. 

It  is  true,  in  Sedwick  v.  Walkins,  1  Ves.  jun.  49,  the 
Lord  Chancellor  refused  a  ne  exeat  where  the  affidavit  of 
the  wife,  alone,  was  offered  to  support  the  motion.  But 
the  case  was  virtually  overruled  in  Shaftoe  v.  Shaftoe,  7 
Ves.  171 ;  and  in  the  case  of  Denton  v.  Denton,  the  order 
was  made  upon  the  affidavit  of  the,  wife  alone. 

The  sufficiency  of  the  affidavit  is  further  objected  to, 
because  it  does  not  allege  that  the  defendant  is  about 
leaving  the  state  to  avoid  the  jurisdiction  of  the  court. 
In  Etches  v.  Lance,  7  Ves.  jun.  417,  the  Lord  Chancellor 
asks  the  question,  "  Must  not  something  more  positive  be 
sworn  as  to  the  facts  of  his  going  abroad,  or  declaration ; 
and  ought  not  the  affidavit  to  state  that  he  is  going  to 
avoid  the  jurisdiction  of  the  court  ?"  But  such  an  alle- 
gation is  not  necessary,  if  the  facts  stated  show  that  the 
defendant's  departure  will  defeat  the  complainant's  claim, 
or  that  he  is  leaving  the  state  for  that  purpose.  £cehm  v. 
Wood,  Tur.  &  Buss.  344 ;  Atkinson  v.  Leonard,  3  Bro.  C. 


MAY  TERM,  1854.  141 


Yule  v.  Yule. 


R.  318.  In  Toirdinsan  v.  Harrison,  8  Ves.  32,  the  Lord 
Chancellor  expressed  some  doubt  whether  the  affidavit 
was  sufficient,  not  alleging  that  the  defendant  was  going 
abroad  to  avoid  the  demand.  But,  upon  being  reminded 
by  Mr.  Leach  (amicus  curice)  of  the  search  for  precedents, 
when  the  question  was  asked  by  Lord  Eldon,  and  the  re- 
sult of  that  investigation,  the  order  was  made. 

Another  objection  to  the  affidavit  is,  that  it  states  the 
belief  only  of  the  complainant  as  to  the  intention  of  the 
defendant's  departing  the  state.  The  objection  is  not  well 
taken  in  point  of  fact.  The  affidavit  states  that  the  de- 
fendant threatened  the  complainant,  that  he  would  aban- 
don her  without  making  any  provision  for  her  support, 
and  that  he  intended  to  take  with  him  another  woman ; 
that  he  had  then  his  goods  packed,  and,  as  she  Relieves, 
with  the  intention  of  leaving  the  state  of  New  Jersey,  and 
leaving  the  complainant  and  her  infant  child  perfectly 
destitute."  The  affidavit  should  show  that  the  defendant 
intends  going  abroad.  It  must  be  positive  as  to  this  point,, 
or  to  his  threats  or  declarations  to  that  effect,  or  to  facts 
evincing  it,  or  circumstances  amounting  to  it.  1  Barb.  C. 
P.  649.  I  think  the  affidavit  sufficiently  precise  in  the 
particulars  required.  In  some  cases  it  will  be  sufficient 
if  the  intention  of  the  defendant's  going  abroad  is  sworn 
to  upon  i information  and  belief.  CoUinson  v.  Collinson,  18- 
Ves.  352.  The  court  should  exercise  a  sound  discretion 
in  ordering  this  writ.  It  should  not  be  issued  in  a  doubt- 
ful case.  The  debt,  or,  in  a  case  between  husband  and 
wife,  the  duty,  should  be  certain,  and  the  intention  of  de- 
parture beyond  the  court's  jurisdiction  should  sufficiently 
Appear.  There  is  no  technical  form  in  which  these  par- 
ticulars need  be  stated.  It  is  sufficient  if  they  appear  by 
proper  proof  before  the  court.  The  debt  need  not  appear 
by  affidavit.  It  is  sufficient  if  established  by  a  master's 
report,  as  in  the  case  of  Coliinson  v.  CoUinson,  before  re- 
ferred to. 

Third.  It  is  insisted   that  the  answer  and   the   accom 


142  CASES  IN  CHANCEKY. 

Yule  «.  Yule. 

panying  affidavits  show  a  case  which  renders  it  improper 
for  the  court  to  interfere  with  the  liberty  of  the  defend- 
ant. The  bill  alleges,  in  general  terms,  that  the  defendant 
abused  and  ill-treated  the  complainant  in  the  most  cruel 
and  inhuman  manner.  The  only  specification  of  sucli 
abuse  is,  that  he  accused  the  complainant  of  infidelity  to 
her  marriage  vows,  and  refused  to  provide  her  and  her 
infant  child  with  the  necessaries  of  life.  The  defendant, 
denies  that  he  ever  refused  to  .make  a  suitable  provision 
for  the  maintenance  and  support  of  his  wife  and  child, 
and  alleges  that  he  has  always  provided  for  them,  and  fur- 
nished them  with  the  necessanes  and  comforts  of  living 
suitable  to  their  station  in  life.  He  does  not  deny  the  faj 
of  having  accused  her  of  infidelity  to  her  marriage  vows. 
But,  as  to  this  particular,  tn«  bill  itself  is  very  meagre. 
"Whether  this  charge  was  made  in  the  presence  of  a  third 
person,  or  was  the  mere  ebullition  of  angry  feelings,  made 
in  an  excited  altercation  between  the  parties,  is  not  stated. 
The  occasion,  and  the  circumstances  under  which  the 
charge  was  made,  would  very  materially  affect  the  aggra- 
vation of  the  offence.  But  the  defence  made  by  the  de- 
fendant, as  to  the  allegation  of  his  intention  to  abandon 
his  wife  and  child,  and  to  depart  from  the  state  for  the 
purpose  of  avoiding  his  legal  responsibility  to  provide  for 
them,  is  satisfactory,  and  entitles  him  to  have  the  ne  exeat 
discharged.  The  defendant  has  for  a  long  time  been  a 
foreman  in  an  extensive  tailoring  establishment  in  the 
city  of  Newark.  About  ten  months  prior  to  filing  the  bill, 
the  establishment  removed  its  place  of  business  to  the 
city  of  New  York  ;  and  the  defendant,  although  keeping 
house  with  his  wife  in  the  city  of  Newark,  was  obliged 
to  go  daily  to  New  York  to  discharge  his  duties  as  fore- 
man. Finding  this  inconvenient  and  expensive,  he  Deter- 
mined to  remove  to  New  York,  and  made  his  arrange- 
ments accordingly.  His  wife  refused  to  go  with  him  ;  and 
npon  his  insisting,  she  actually  abandoned  her  home  in 
Newark,  and  took  up  her  residence  with  a  neighbor.  The 


MAY  TERM,  1854.  143 


Yule  v.  Yule. 


complainant  went  to  New  York,  and  pursued  his  business 
there  ;  but  before  going,  left  in  the  hands  of  a  friend  some 
money,  to  be  applied  for  the  support  of  his  wife  and  child. 
Subsequently,  on  coming  out  to  Newark  to  look  after  his 
property,  he  was  arrested  upon  this  writ  of  ne  exeat.  I 
have  not  stated  the  defendant's  case  as  strong  as  it  is  made 
by  the  answer  and  affidavits.  For  a  Court  of  Chancery, 
under  such  circumstances,  to  undertake  to  restrain  the 
liberty  of  a  husband,  in  order  to  compel  him  to  support 
his  wife,  would  be  adopting  the  wildest  notions  of  the 
most  sanguine  enthusiasts  in  favor  of  women's  rights. 
What  is  left  us  of  the  principles  of  the  common  law  re- 
specting the  relationship  existing  between  husband  and 
wife,  this  court  must  adhere  to.  The  husband  is  bound 
to  provide  a  proper  maintenance  for  his  wife,  but  she 
must  share  his  fortunes  under  his  own  roof.  If  she  seeks 
another  shelter  for  her  own  pleasure  or  convenience,  it 
must  be  at  her  own  expense.  Whatever  may  be  done 
elsewhere,  this  court,  while  any  discretion  is  left  to  it  in 
administering  the  laws,  will  not  countenance  a  relaxation 
of  any  of  those  wholesome  rules  which  make  the  mutual 
dependencies  between  husband  and  wife,  and  child,  the 
best  security  for  the  peace  and  happiness  of  them  all. 

The  fifth,  and  last  ground  upon  which  the  defendant 
relies  to  have  the  order  discharged,  is  also  well  taken,  that 
the  bill  is  for  alimony  founded  upon  extreme  cruelty,  and 
that  in  such  a  case  this  court  has  no  jurisdiction  to  decree 
alimony,  except  as  incident  to  a  divorce ;  and  as  that  is 
not  asked  fbr,  the  complainant  is  not  entitled  to  relief. 
The  general  proposition  is  contended  for,  that  this  court 
can  grant  alimony  only  as  incident  to  divorce. 

Bishop  on  Marriage  and  Divorce,  551,  to  561,  after  dis- 
cussing the  doctrine,  and  referring  to  the  numerous  au- 
thorities bearing  upon  it,  says,  "  It  is  upon  this  principle," 
the  principle  just  stated  by  the  author,  that  the  law  casts 
upon  the  husband  the  duty  suitably  to  maintain  the  wife, 
according  to  his  ability  and  condition  ;  "  that,  as  a  gene- 


CASES  IN  CHANCERY. 


Yule  v.  Yule. 


ral  proposition,  a  decree  for  separation  in  favor  of  the 
wife  must  be  accompanied  or  followed,  if  she  ask  it,  by 
a  decree  for  alimony.  And  upon  the  same  principle  rests 
the  bettor  and  general  doctrine,  which  we  have  already 
discussed,  that  no  conrt  can  grant  alimony  when  that  is 
the  only  thing  sought  ;  because  in  the  nature  of  the  case, 
an  adjudication  that  the  wife  may  live  separate  from  the 
husband,  is  a  necessary  foundation  for  an  adjudication 
that  he  shall  pay  her  a  separate  support. 

The  jurisdiction  of  this  court  in  cases  of  divorce  and 
alimony  is  prescribed  by  statute.  The  third,  fourth,  and 
eighth  sections  of  the  statute  (R  L.  923,  924-,)  specify  the 
grounds  upon  which  the  court  may  assume  jurisdiction. 
The  ninth  section  (R  L.  924)  enacts,  "that  when  a  di 
vorce  shall  be  decreed,  the  court  may  take  such  oruei 
touching  the  alimony  and  maintenance  of  the  wife,  and 
also  touching  the  care  and  maintenance  of  the  children 
by  the  husband,  as  from  the  circumstances  of  the  parties 
and  the  nature  of  the  case  shall  be  fit,  reasonable,  and 
just."  The  tenth  section  of  this  statute  specifies  a  single 
ease  in  which  it  declares  it  shall  be  lawful  for  the  court 
to  order  alimony,  without  connecting  such  order  with  a 
decree  for  divorce,  and»that  is  in  a  case  where  the  court 
is  not  authorized  by  statute  to  decree  a  divorce,  vis.  where 
the  husband,  without  any  justifiable  cause,  shall  abandon  his 
wife,  or  separate  himself  from  her,  and  refuse  or  ne* 
gleet  to  maintain  and  provide  for  her.  Admitting  that 
there  is  nothing  in  the  statute  itself  to  prohibit  the  court 
from  making  a  decree  for  alimony  alone,  in  those  cases 
specified'  in  the  sfatute  where  the  court  may  decree  di- 
vorce and  alimony  as  incident  to  it,  we  are  then  thrown 
back  upon  the  question  as  a  matter  of  principle,  whether 
the  court  ought,  except  in  cases  expressly  authorized  by 
statute,  to  decree  alimony,  except  upon  a  decree  for  di- 
vorce, as  a  necessary  foundation  for  it.  The  weight  of  au- 
thority, as  has  been  before  stated,  is  against  the  jurisdic- 
tion. Al'.iongh  we  have  no  express  adjudication  in  this 


MAY  TEEM,  1854.  14ft 


Yule  v.  Yule. 


court  upon  the  point,  the  opinion  of  the  Chancellors  in 
cases  which  have  been  decided,  not  however  turning  upon 
that  point  alone,  would  seem  to  incline  in  favor  of  the 
doctrine,  as  I  have  stated  it.  In  Melony  v.  Melony,  decided 
by  Chancellor  "Williamson,  in  1828,  a  decree  was  made 
for  alimony.  The  bill  was  filed  for  divorce  and  alimony. 
But  the  case  was  brought  within  the  provision  of  the  tenth 
section  of  the  statute.  The  Chancellor  says,  "I  think  it 
sufficiently  proved  that  the  complainant  has  offered  to  re- 
turn and  live  with  the  defendant,  and  that  he  refuses  to 
live  with  her,  and  neglects  to  provide  for  her,  or  to  main- 
tain her  according  to  his  circumstances  and  situation  in 
life."  In  the  case  of  Miller  v.  Miller,  Saxton  389,  the  mas- 
ter, sitting  for  the  Chancellor,  after  citing  Bail  v.  Mont- 
gomery, %Ves.jun.  195;  in  which  Lord  Thurlow  says,  "I 
take  it  to  be  the  established  law,  that  no  court,  not  even 
the  ecclesiastical  court,  has  any  original  jurisdiction  to 
give  a  wife  separate  maintenance,"  goes  on  to  say,  "  But 
in  thisxstate,  I  consider  this  court  has  original  jurisdic- 
tion." And  he  then  cites  the  tenth  section  of  the  statute 
to  sustain  his  opinion. 

The  present  case  is  not  within  the  tenth  section  of  the 
statute.  The  husband  has  not  abandoned  his  wife,  or 
separated  himself  from  her,  nor  refused  or  neglected  to 
maintain  and  provide  for  her.  She,  as  the  bill  admits, 
left  his  home,  and  abandoned  him. 

With  the  view  I  have  taken  respecting  the  jurisdiction 
of  the  court,  I  think  I  may  safely  conclude,  that  it  is  at 
least  extremely  doubtful  whether  the  complainant  is  enti- 
tled to  the  relief  she  seeks  by  her  bill.  As  the  court  ought 
not,  in  a  case  of  doubt,  to  order  a  ne  exeat,  I  consider  tin's 
objection  to  the  jurisdiction  of  the  court,  for  the  purposes 
of  this  argument,  to  be  well  taken. 


CITED  in  Rockwell  v.  Morgan,  2  Dean.  121;  Anshutz  v.  Anshutz  1  C.  E.  Or. 
165;  MacDonough  v.  Qaynor,  3  C.  E.  On  250;  Anonymous,  9  C.  E.  Or.  Iflt 

YOL-  n.  N 


146  CASES  IN  CHANCEKY. 

Cornish  r.  Bryan. 


DAVID  B.  CORNISH  Vs.  ISAIAH  BRYANT  et  al. 

This  court  has  the  power  to  order  a  bond  or  other  instrument  to  be  deli vered 
up  to  be  cancelled,  and  the  court  may  properly  exercise  the  power,  although 
the  grounds  upon  which  the  jurisdiction  of  the  court  is  invoked  may  con- 
stitute a  valid  defence  at  law  against  the  writing. 

An  assignee  of  a  bond,  takes  it  subject  to  all  the  equities  which  existed  at 
the  time  of  the  assignment,  between  the  obligor  and  obligee. 

But  if  A  executes  to  B  his  bond,  and  takes,  as  a  consideration  for  it,  B's  pro- 
missory note  at  ninety  days,  if  B  assigns  the  bond  to  C,  before  the  note 
becomes  due,  A  cannot  resist  the  payment  of  his  bund  in  the  assignee's 
hand  on  the  ground  of  a  failure  of  consideration. 


The  bill  alleges,  that  on  or  about  the  3d  day  of  June, 
1853,  Edward  Mumford  was  engaged,  in  the  city  of  Phila- 
delphia, in  the  business  of  vending  tickets,  entitling,  or 
purporting  to  entitle,  the  holders  thereof  to  a  passage 
from  the  city  of  New  York  to  California,  representing 
himself  to  be  the  accredited  agent  of  the  proprietors  of 
certain  lines  of  steamships  for  the  conveyance  of  passen- 
gers between  the  places  aforesaid;  that  the  complainant 
was  desirous  to  secure  a  passage  from  New  York  to  San 
Francisco,  and  for  that  purpose  applied  to  Mumford  for 
the  purchase  of  a  passage  ticket ;  that  upon  such  applica- 
tion, Mumford  demanded  of  him,  as  the  price  of  such 
ticket,  one  hundred  and  eighty  dollars,  and  that  the  com- 
plainant, being  unprovided  with  cash,  proposed  to  Mum- 
ford  to  execute  to  him  a  bond  conditioned  for  the  pay- 
ment of  two  hundred  dollars,  to  be  secured  by  a  mortgage 
On  certain  real  estate  belonging  to  the  complainant,  situ- 
ate in  the  city  of  Camden,  in  this  state ;  that  Mumford 
refused  this  proposition,  but  at  the  same  time  proposed  to 
Bell  the  complainant  a  ticket  for  a  conveyance  from  New 
York  to  San  Francisco,  at  the  price  of  one  hundred  and 
sixty  dollars,  and  to  give  him  the  sum  of  one  hundred 
dollars  in  money,  and  an  acknowledgment  of  the  receipt 
by  him,  the  said  Mumforcl,  from  the  complainant  of  the 
further  sum  of  three  hundred  dollars,  and  that  the  com- 


MAY  TEEM,  1854.  147 

Cornish  tJ.  Bryan. 

plainant  should  execute  and  deliver,  in  turn  to  Mumford, 
the  complainant's  bond  conditioned  to  pay  six  hundred 
dollars,  vis.  three  hundred  dollars  in  one  year,  with  inte- 
rest, and  three  hundred  dollars  in  two  years,  with  inte- 
rest, and  a  mortgage  on  the  Camden  lands,  to  secure  the 
said  bond  ;  that  Mumford  represented  that  the  bond  and 
mortgage  in  such  case  should  be  held  good  for  three 
hundred  dollars  only ;  that  the  receipt  of  three  hundred 
dollars  would  always  remain  as  a  discharge  for  so  much 
of  the  bond ;  that  he  wished  the  bond  and  mortgage  to 
be  six  hundred  dollars  for  his  own  convenience,  and 
that  he  would  not  furnish  the  ticket  on  any  other  terms ; 
that  the  complainant,  confiding  in  Mumford,  did,  on  the 
3d  of  June,  1852,  execute  and  deliver  to  M.  a  bond  and 
mortgage  to  secure  $600,  according  to  the  terms  afore- 
said, and  upon  the  delivery  thereof,  received  from  M.,  as 
the  only  consideration  therefor,  the  sum  of  one  hundred 
dollars  in  money,  together  with  a  receipt,  signed  by  M., 
for  the  sum  of  $300,  and  a  memorandum  in  writing,  that 
he  would  furnish  the  complainant,  in  the  city  of  New 
York,  a  passage  ticket  from  said  city  to  San  Francisco 
by  a  steam  ship,  to  sail  from  New  York  on  the  ninth  of 
June  then  next ;  that  in  pursuance  of  said  arrangement, 
complainant  went  to  New  York  to  receive  his  passage 
ticket,  and  sail  for  California,  and  remained  in  New  York 
until  after  the  sailing  of  the  steamer  of  the  said  9th  of 
June,  and  made  frequent  demands  upon  M.  for  his  ticket, 
but  which  M.  neglected  and  failed  to  furnish  ;  that,  on 
the  14th  of  same  month  of  June,  complainant  called  upon 
M.,  in  the  city  of  Philadelphia,  and  paid  back  to  him,  at 
liis  request,  the  said  sum  of  one  hundred  dollars,  so  re- 
ceived from  him  as  aforesaid,  and,  upon  like  request,  sur- 
rendered and  delivered  to  M.  the  memorandum  agreeing 
to  furnish  the  passage  ticket,  and  also  delivered  up  to 
said  M.  the  receipt  for  three  hundred  dollars,  the  said 
money,  ticket,  and  receipt  being  the  whole  and  only  con- 
sideration for  the  bond  and  mortgage  ;  that  at  that  time 


143  CASES  IN  CHANCEKY. 

Cornish  v.  Bryan. 

complainant  demanded  the  bond  and  mortgage,  when  M. 
replied,  that  they  were  not  conveniently  at  hand,  or  in 
the  actual  possession  of  him,  the  said  M.,  and  he,  the 
said  M.,  thereupon  executed  and  delivered  to  complain- 
ant, and  prevailed  on  him  to  accept,  a  bond,  in  the  pen- 
alty of  $1200,  conditioned  for  the  payment  of  the  instal- 
ments and  interest  mentioned  in  the  condition  of  the 
bond  and  mortgage  from  complainant  to  M.  acknowledg- 
ing the  receipt  of  the  money  received  by  the  bond  and 
mortgage,  and  covenanting  to  make  good  all  payments 
on  account  thereof,  and  to  take  up  and  release  the  com- 
plainant from  the  said  bond  and  mortgage  as  soon  as  pos- 
sible, and  at  the  same  time  M.  delivered  to  complainant 
a  receipt  for  said  $600  and  an  undertaking  to  pay  off  said 
bond,  and  which  bond  and  receipt  the  complainant  re- 
ceived as  temporary  security  for  the  surrender  of  the 
bond  and  mortgage  ;  that  between  the  day  of  the  date  of 
the  said  bond  and  mortgage  and  the  26th  day  of  the 
same  month  of  June,  Mumford  assigned  and  delivered 
the  said  bond  and  mortgage  to  the  other  defendant 
in  this  suit,  Isaiah  Bryan,  of  the  city  of  Camden  afore- 
said, and  that  afterwards,  to  wit,  on  the  said  26th  day 
of  June,  the  said  mortgage  was  put  upon  record,  and 
that  B.  now  claims  from  complainant  the  money  due  on 
the  bond  and  mortgage  ;  that  complainant  has  lately  dis- 
covered that  the  said  M.  never  was  the  accredited  agent 
of  any  line  of  steam  ships,  and  had  no  authority  to  sell 
passage  tickets  by  any  line  of  conveyance  from  the  own- 
ers thereof,  or  for  any  other  person  authorized  therefor ; 
that  complainant  is  a  man  of  color,  ignorant  of  the  forms 
of  business,  and  particularly  of  the  nature  and  effect  of 
the  bond  and  mortgage  so  executed  by  him,  as  aforesaid, 
to  M. ;  that  he  is  advised  by  counsel  that  the  said  bond 
and  mortgage  are  fraudulent  and  void,  and  ought  to  be 
delivered  up  to  be  cancelled  ;  that  E.  M.  threatens,  if  the 
money,  as  it  grows  due  on  the  bond  and  mortgage  is  not 
paid,  he  will  commence  suit  upon  them. 


MAY  TEEM,  1854.  149 

Cornish  v.  Bryan. 

The  prayer  of  the  bill  is,  that  the  said  bond  and  mort- 
gage may  be  declared  null  and  void,  and  that  the  same 
may  be  delivered  up  to  be  cancelled  ;  that  an  injunction 
may  issue,  &c.,  and  that  the  complainant  may  have  such 
further  and  other  relief,  &c. 

Josiah  Bryan  answered  this  bill.  He  states  that  he  is 
the  bona  fide  assignee  of  the  said  bond  and  mortgage  ; 
that  it  was  assigned  to  him  on  the  8th  day  of  June,  1853, 
and  was  by  him  delivered  for  record  on  the  26th  of  the 
same  month  ;  that  the  consideration  paid  by  him  to  E.  M. 
•was  $550  in  cash,  and  that  he  took  the  assignment 
without  any  notice  of  any  of  the  facts  or  circumstances 
alleged  by  the  bill  of  complaint  in  reference  to  the  trans- 
action. 

No  answer  was  put  in  by  Edward  Mumford,  he  having 
left  the  country  shortly  after  the  transaction. 

Proofs  were  taken  on  the  part  of  the  complainant,  and 
exhibits  made  on  both  sides. 

Barker  Gummere  and  W.  L.  Dayton,  for  the  complain- 
ant, insisted — 

First.  That  the  bond  and  mortgage  were  procured  by 
artifice  and  fraud,  and  are  therefore  void. 

Second.  That  the  assignee  took  the  assignment  of  the 
bond  and  mortgage  subject  to  all  the  equities  existing  be- 
tween the  obligor  and  obligee.  Shannon  v.  Marselis  et  al.t 
Saxton  425,  and  cases  there  cited. 

Third.  That  the  obligee  paid  and  satisfied  the  bond 
and  mortgage  to  the  obligor  before  having  any  notice  of 
the  assigment.  Statutes  of  New  Jersey  801. 

Fourth.  That  the  relief  prayed  for  is  proper  to  be 
granted  by  this  court.  Hamilton  v.  Cummings,  1  J.  C.  It. 
517. 

James  B.  Dayton,  for  defendant. 

The  remedy  of  the  complainant  is  complete  at  law,  and 
tlie  court  ought  no.t  to  grant  the  relief  asked  for  by  the  bill. 


150  CASES  IN"  CHANCERY. 

Cornish  v.  Bryan. 

Minshaw  v.  Jordan  3  B.  C.  18  ;  Ryan  v.  Macmaih,  3  Bro. 
15  ;  Newman  v.  TF*fo0r,  2  T7^.  /im.  483  ;  Franco  v.  J50£- 
fcw,  3  Ves.  363  ;  #ray  v.  Mathias,  5  Fes.  286. 

Bryan  is  an  innocent  holder  without  notice  of  any  fraud. 
Ther.e  was  no  fraud.  The  complainant  made  his  bargain 
with  his  eyes  open,  and  his  ignorance  and  stupidity  ought 
not  to  prevail  in  depriving  the  defendant  of  his  money. 

After  complainant  discovered  the  alleged  fraud,  he 
waived  it,  and  took  Mumford's  bond  in  full  consideration. 
He  cannot  now  set  up  the  fraud.  Story  on  Contracts,  §314, 
315  ;  Lyon  v.  Richmond,  2  J.  C.  JR.  51  ;  Starrs  and  Brooks 
v.  Barker,  6  J.  C.  R.  166. 

He  paid  the  bond  and  mortgage,  if  he  did  pay  them, 
with  full  knowledge  of  the  assignment.  Mumford  told 
him  he  did  not  have  them. 

THE  CHANCELLOR.  The  prayer  of  the  bill  is,  that  the 
bond  and  mortgage  executed  by  Mumford  to  Cornish,  and 
by  Cornish  assigned  to  the  defendant,  Bryan,  may  be  de- 
clared null  and  void,  and  may  be  decreed  to  be  delivered 
up  to  the  complainant,  and  be  cancelled. 

This  relief  is  resisted  upon  several  grounds. 

First.     The  power  of  the  court  is  questioned. 

Second.  Upon  the  ground  that  the  allegations  of  the 
bill,  respecting  fraud  in  procuring  the  execution  and  de- 
livery of  the  bond  and  mortgage,  are  not  sustained  by  the 
proofs. 

Third.  That  the  defendant,  Bryan,  is  a  bonafide  as- 
signee, without  any  notice  as  to  the  consideration  upon 
which  the  bond  and  mortgage  were  executed,  and  that 
his  rights  ought  not  to  be  affected  by  the  transactions 
between  the  original  parties. 

Fourth.  That  whatever  payment,  or  satisfaction  of  the 
bond  and  mortgage,  was  made  by  the  complainant  to 
Mumford,  was  after  the  assignment,  and  under  circum- 
stances to  charge  the  complainant  with  notice  of  the  as- 
signment. 


MAY  TEEM,  1854.  151 


Cornish  u.  Bryan. 


And  lastly.  That  the  bond  delivered  by  Mumford  to 
Cornish  was  a  new  consideration  for  the  bond  and  Mort- 
gage, and  was  received  as  such  by  the  complainant,  with 
i'uii  knowledge  of  the  alleged  fraud ;  and  that  he  is  thereby 
estopped  from  setting  it  up  against  the  defendant,  Bryan, 
who  is  a  bvtiajide  assignee. 

The  power  of  the  court  to  order  a  bond,  or  other  in- 
strument, to  be  delivered  up  to  be  cancelled,  has  been  too 
frequently  exercised  to  be  now  called  in  question.-  The 
authorities  were  very  carefully  examined  by  the  Chancellor 
in  Hamilton  against  Gummings,  1  J.  C.  R.  517,  and  the 
propriety  of  the  court  exercising  such  power  in  particular 
cases  vindicated.  "  This  court  has  the  power  to  order  a 
bond  or  other  instrument  to  be  delivered  up  to  be  can- 
celled, whether  such  instrument  is  or  is  not  void  at  law, 
or  whether  it  be  void  on  the  face  of  it,  or  by  matter  shown 
by  the  proofs  in  the  cause ;  but  the  exercise  of  this  power 
rests  in  the  sound  discretion  of  the  court,  and  is  regulated 
by  the  circumstances  of  each  particular  case." 

The  mere  fact,  that  the  grounds  upon  which  the  juris- 
diction of  this  court  is  invoked  may  avail  the  party  in  an 
action  at  law,  and  constitute  a  valid  defence  by  plea,  or 
otherwise,  is  not  a  sound  objection  to  the  court's  exer- 
cising this  power.  If  a  party  holds  an  obligation  which 
ought  to  be  cancelled,  and  persists  in  holding  it  for  the 
purpose  of  harassing  the  obligor  with  a  suit,  he  ought  not 
to  be  permitted  to  select  his  own  place,  time,  and  circum- 
stances for  such  prosecution.  Where  a  suit  at  law  is  com- 
menced, and  the  defence  at  law  is  complete,  then  that  is 
a  good  objection  for  this  court's  refusing  to  change  the 
forum  of  litigation.  Where,  too,  the  defence  is  of  a  cha- 
racter plain  and  palpable,  and  within  the  command  of  the 
party  at  any  time,  this  court  ought  not  to  encourage  a  re- 
sort to  an  expensive  litigation  in  a  Court  of  Chancery. 
In  all  cases,  the  court  must  exercise  a  sound  discretion, 
arid  be  regulated  in  its  action  by  the  propriety  of  the  par- 
ticular case  before  it.  The  case  made  by  this  bill  is  one 


152  CASES  IN  CIIANCEBY. 

Cornish  v.  Bryan. 

entitling  the  complainant  to  relief.  The  grounds  upon 
which  he  insists  the  bond  and  mortgage  should  not  be 
enforced,  while  they  might  protect  him  against  a  recovery 
in  any  action  at  law  brought  against  him,  are  of  a  charac- 
ter to  render  a  defence  at  law  embarrassing  and  hazard- 
ous. Besides,  if  the  complainant's  allegations  are  true, 
the  mortgage  ought  not  to  remain  an  encumbrance,  or 
at  least  a  blemish,  upon  his  title.  His  only  remedy  to 
relieve  himself  of  the  embarrassment  which  this  mort- 
gage might. occasion  him,  and  of  the  serious  injury  to  his 
title,  is  by  a  resort  to  this  court.  I  think  the  complainant 
is  rightly  before  this  tribunal,  and  should  be  relieved,  if 
he  has  sustained  his  case  by  proof. 

As  to  the  bond  and  mortgage  having  been  procured 
from  the  complainant  by  the  artifice  and  fraud  of  Mum- 
ford,  if  the  complainant's  right  to  relief  turned  solely 
upon  this  question,  his  case  could  not  be  sustained.  The 
allegations  of  the  bill  in  this  particular  are  not  proved. 
The  important  charge,  that  Mumford  fraudulently  as- 
sumed to  be  the  agent  of  a  line  of  steamers  between  New 
York  and  San  Francisco,  with  power  and  authority  to 
vend  tickets  for  passengers,  is  not  made  satisfactory  by 
the  evidence.  He  was  openly  acting  as  such  agent  in  the 
city  of  Philadelphia.  It  is  not  pretended  he  assumed  such 
authority  for  the  mere  purpose  of  imposing  upon  the 
complainant.  The  only  evidence  of  his  want  of  authority 
is  the  fact,  that  upon  the  complainant's  calling  at  the  office 
of  the  company  in  the  city  of  New  York,  for  whom  Mum- 
ford  assumed  to  act,  some  one  at  the  office  denied  that 
Mumford  was  an  agent.  There  might  have  been  reasons 
existing  at  the  time  when  inquiry  was  made  for  denying 
his  agency.  It  was  on  the  eve  of  the  sailing  of  the  steamer, 
at  a  period  when,  it  is  a  matter  of  notoriety,  the  demand 
for  passages  could  not  be  supplied.  But  it  is  unnecessary 
to  speculate  upon  this  matter.  Satisfactory  proof  was 
within  reach  of  the  complainant.  If  Mumford  was  not 
an  agent  of  the  company,  some  one  connected  with  the 


MAY  TEEM,  1854.  153 

Cornish  v.  Bryan. 

company  should  have  been  called  as  a  witness  to  establish 
the  fact.  The  proof  as  to  the  particulars  of  the  transac- 
tions which  took  place  during  the  negotiation  of  the  par- 
ties respecting  the  bond  and  mortgage,  does  not  corres- 
pond with  the  allegations  of  the  bill  in  every  particular. 
According  to  the  testimony  of  Eli  Hopkins,  the  whole 
transaction  was  this :  the  complainant  applied  to  Mum- 
ford  for  a  ticket,  and  offered  to  give  him  a  mortgage  on 
his  house  and  lot  in  Camden  for  three  hundred  dollars. 
He  wanted  Mumford  to  give  him  a  ticket  for  one  hundred 
and  eighty  dollars,  and  the  balance  in  money  for  the 
mortgage.  Mumford  refused,  and  said  he  would  not  take 
a  mortgage  for  less  than  six  hundred  dollars.  It  was  then 
agreed  between  them  that  the  bond  and  mortgage  should 
be  given  for  six  hundred  dollars ;  that  Mumford  should 
give  complainant  a  ticket  for  a  passage  from  New  York 
to  California,  at  the  price  of  one  hundred  and  eighty  dol- 
lars, pay  him  in  cash  one  hundred  and  twenty  dollars, 
and  give  him  a  receipt  for  $300,  which  receipt  would  be 
good  at  any  time  as  a  payment  for  that  amount  on  the 
bond  and  mortgage.  The  witness  does  not  state  that 
Mumford  used  any  artifice,  or  even  persuasion,  to  induce 
the  complainant  to  make  the  arrangement.  He  delibe- 
rately entered  into  this  arrangement.  Mumford  gave  him 
one  hundred  dollars  in  cash,  a  memorandum  for  the  ticket, 
and  a  receipt,  as  agreed  upon,  for  the  three  hundred  dol- 
lars, and  the  complainant  delivered  to  Mumford  the  bond 
and  mortgage.  Thus  far  there  was  no  fraud  in  this  trans- 
action, unless  Mumford  assumed  his  character  as  ticket 
agent  for  the  fraudulent  purpose  of  procuring  the  com- 
plainant to  execute  the  papers  ;  and  upon  this  point,  as  I 
have  already  remarked,  the  evidence  is  not  satisfactory. 
The  next  question  is,  as  to  the  rights  of  llyan  under  his 
assignment. 

What,  then,  were  the  respective  rights  of  the  original 
parties  at  this  crisis  in  the  transaction  ?  The  bond  and 
mortgage  had  been  delivered.  The  complainant  had  re- 


154:  CASES  IN  CHANCERY. 

Cornish  o.  Bryan. 

ceived  a  valid  consideration  for  them  of  two  hundred  and 
eighty  dollars,  one  hundred  of  which  was  in  cash,  and  for 
the  remaining  one  hundred  and   eighty  dollars,  he  took  a 
memorandum,    or    order  for    the   delivery  of  a    passage 
ticket  from  New  York  to  California,  in  a  steamer  to  sail 
from  the  city  of  New  York  on  the  then  9th  day  of  June. 
On  the  8th  day  of  June,  Mumford  assigned  the  bond  and 
mortgage   to  the   defendant,   Ryan.     Ryan  took  the  bond 
subject  to  all  the  equities  which  existed   at  the  time  of  the 
assignment  between  the  obligor  and  obligee.      On  the  8th 
of  June,  it  was  a  good   and   valid  obligation  in  the  hands 
of  the  obligee  for  two  hundred  and  eighty  dollars.     By  the 
assignment,  all  his  title  and  interest  passed,   and  became 
vested  in  his  assignee.     That  interest  was  not  affected  by 
the  subsequent  failure  of  the  obligee  to  furnish  the  pas- 
sage ticket.     The   assignment  was  executed  on  the  8th   of 
June.     The  ticket  was  to  be  furnished  on  the  ninth.      If 
this  part  of  the  consideration  had  failed  while  the  bond   re- 
mained in  the  hands  of  the  obligee,  an  equity  to  have  that 
amount  deducted  from  or  credited  on  the  bond,   might 
have  arisen.     But  no  such  equity  can  attach  to  the   bond 
in  the  hands  of  a  bonafide  assignee.     If  A,  executes  to  B. 
his  bond,  and  takes,  as  a  consideration  for  it,  B's  prommis- 
sory  note  at  ninety  days,  if  B.  assigns  the   bond  to   C.   be- 
fore the  note  becomes  due,   A.   cannot  resist  the  payment 
of  his  bond  in  the  hands  of  the   assignee   on  the   ground 
of  a  failure   of  consideration.     And  upon  the   same  princi- 
ple, the  complainant  could  not  resist  the  payment   of  his 
bond  to  the  amount  of  this  two  hundred  and  eighty  dollars, 
on  the  ground  that   so   much    of    the  consideration  had 
failed.     The  assignee  was  a  ~bona  fide  holder  of  the  bond 
and,  as  such,   was  entitled  to  recover  of  the   obligor  two 
hundred  and  eighty  dollars,  even  if  he  had  notice  of  the 
whole  transaction  between  the  obligor  and  obligee. 

But  a  further  ground  upon  which  the  complainant  asks 
relief  is,  that  the  bond  has  been  fully  paid  and  satisfied, 
and  that  such  payment  was  made  to  Edward  Mumford, 


MAY  TERM,  1854.  .  155 

Cornish  v.  Bryan. 

the  obligee,  without  the  complainant's  having  notice  of 
the  assignment.  If  this  is  so,  the  bond  is  satisfied,  ac- 
cording to  the  provision  of  the  statute.  /Statutes  of  New 
Jersey  801. 

The  evidence  on  this  point  is  full  and  satisfactory.  After 
the  9th  of  June,  the  complainant  leturned  from  the  city 
of  New  York  baffled  and  disappointed  in  his  efforts  to 
procure  his  ticket  for  a  passage  to  OaT  forma.  The  only  in- 
ducement for  which  he  had  executed  the  bond  and  mort- 
gage had  failed.  He  at  once  sought  for  Mumford,  for  the 
purpose  of  rescinding  the  contract  and  procuring  a  return 
of  his  obligations.  On  the  12th  of  June,  he  had  an  inter- 
view with  him  in  the  presence  of  two  companions,  Eli 
Hopkins  and  Henry  Graham,  who,  also,  had  received 
from  Mumford  a  like  memoranda  or  tickets  with  that 
which  the  complainant  had  received,  and  who,  in  like 
manner,  had  been  disappointed.  Hopkins  thus  details 
what  took  place  between  the  parties.  As  the  order  of  the 
occurrence  is  of  some  importance,  I  give  the  language  of 
the  witness.  "  We  demanded  our  money.  He  then  paid 
Henry  Graham  his  one  hundred  and  eighty  dollars ;  then 
he  asked  David  Cornish  (the  complainant)  to  pay  him  the 
one  hundred  dollars  he  had  paid  him.  David  paid  him  ; 
and  then  he  paid  me  back  my  one  hundred  and  eighty 
dollars.  I  received  part  of  the  same  money  which  David 
paid  him.  After  David  paid  him  the  one  hundred  dollars, 
of  course  he  gave  him  up  the  check  and  receipt  for  three 
hundred  dollars.  Then  David  said,  now  I  want  to  have 
this  thing  settled  right  away.  I  have  given  you  up  your 
check.  I  have  given  you  up  your  receipt.  I  have  given 
you  up  your  money.  Now  I  want  you  to  give  me  up  my 
mortgage.  His  reply  was,  "  David,  I  have  not  got  your 
mortgage  just  here,  but  I  will  have  it  for  you  in  the  course 
of  a  few  days,  or  as  soon  as  possible."  The  statement  of 
the  witness  is  corroborated  by  Henry  Graham.  Mumford 
then  gave  complainant  a  writing  acknowledging  the  pay- 
ment in  full  of  the  bond  and  mortgage.  The  evidence 


156  .  -  CASES  IN  CIIANCEKY. 

Cornish  v.  Bryan. 

clearly  shows  that  the  complainant  paid  the  bond  in  full 
without  notice  of  the  assignment ;  and  that  when  he  re- 
turned the  consideration,  there  was  no  ground  for  suspi- 
cion that  the.  papers  were  not  then  in  the  actual  posses- 
sion of  Mumford.  This  constitutes  a  valid  defence  against 
the  bond  under  the  statute.  I  have  been  somewhat  em- 
barrassed, as  to  this  part  of  the  case,  from  the  fact,  that 
the  bill  does  not  directly  charge  that  the  complainant 
satisfied  the  bond  without  having  notice  of  the  assignment. 
I  admit  that  I  have  been  obliged  to  give  a  very  liberal  con- 
struction to  the  bill  to  enable  the  complainant  to  avail 
himself  of  this  ground  of  relief.  I  have  felt  myself  jus- 
tified in  doing  so  to  reach,  what  appears  to  me  after  a 
careful  review  of  all  the  circumstances,  the  real  merits 
and  equity  of  the  case.  The  defendant  must  be  the  suf- 
ferer, but  he  cannot  be  said  to  be  an  innocent  sufferer. 
He  has  involved  himself  in  this  difficulty  by  his  own 
laches,  and  by  reposing  undue  confidence  in  a  man  who, 
up  to  the  time  of  the  assignment,  was  a  total  stranger  to 
him.  He  bought  the  bond  and  mortgage  within  five  days 
after  their  execution,  and  before  the  mortgage  was  re- 
corded, at  a  discount  of  fifty  dollars.  He  did  not  have  the 
mortgage  recorded  until  the  26th  of  June ;  and,  instead 
of  giving  notice  at  once  to  the  complainant  of  the  assign- 
ment, he  preferred  reposing  upon  his  confidence  in  Mum- 
ford.  He  thus  exposed  both  himself  and  the  complain- 
ant to  MurnfordV  dishonesty,  and  the  law  makes  the  de- 
fendant the  sufferer. 

But,  on  behalf  of  the  defendant,  it  is  insisted  that  the 
instrument  of  writing,  which  was  executed  and  delivered 
by  Mumford  to  the  complainant  on  the  14th  of  June, 
when  the  consideration  of  the  bond  was  returned  to  Mum- 
ford,  is  an  affirmance  of  the  existence  and  validity  of  the 
bond  and  mortgage.  I  do  not  see  how  such  a  construction 
can  be  given  to  the  instrument.  After  the  complainant 
had  returned  the  consideration,  and  Mumford  had  refused 
to  deliver  up  the  papers,  the  complainant  demanded  secu- 


MAT  TEEM,  1854.  157 

Cornish  v.  Bryan. 

rity  for  their  delivery.  Mumford  then  executed  a  writing 
in  the  nature  of  a  bond  with  a  penalty  of  twelve  hundred 
dollars.  The  condition  recites  the  bond  and  mortgage, 
that  the  complainant  had  not  made  use  of  the  money,  and 
wished  to  pay  the  full  amount  in  advance  for  principal 
and  interest.  It  then  declares  as  follows :  "I,  the  said 
Edward  Mumford,  bind  myself,  my  heirs  and  executors, 
to  pay  said  instalment,  and  relinquish  the  same,  having 
received  the  full  sum  of  six  hundred  dollars  and  costs 
from  the  said  David  B.  Cornish  on  account  of  his  mort- 
gage, hereby  discharging  the  said  David  B.  Cornish  from 
any  payment  or  sums  of  money  that  may  come  due  on 
the  same,  and  to  stand  make  good»any  payment  that  may 
come  due  on  account  of  the  same,  or  to  any  other  person 
or  persons  whatsoever,  the  said  Edward  Mumford  binds 
himself  to  take  up  the  said  mortgage,  and  give  the  said 
David  B.  Cornish  a  release  in  full  as  soon  as  possible." 

Whether  the  complainant  would  have  been  justified  in 
returning  the  consideration  he  had  received  for  the  bond, 
or  in  paying  the  bond  upon  the  receipt  of  such  a  paper, 
and  could,  after  doing  so,  have  protected  himself  against 
the  payment  of  the  bond  in  the  hands,  of  an  innocent 
holder,  is  a  question  different  from  the  one  we  have  to 
solve  in  the  case  before  us.  He  had  satisfied  the  bond, 
not  upon  condition  that  Mumford  should  ej^cute  this  pa- 
per, but  he  had  satisfied  it  unconditionally,  under  the  im- 
pression and  belief  that  the  bond  was  at  the  time  in  the 
hands  of  the  assignee,  and  would  be  forthwith  delivered 
up  to  him.  The  paper  can  be  looked  upon  in  no  other 
light  than  as  an  acknowledgment  that  the  bond  and  mort- 
gage had  been  satisfied,  and  as  an  indemnity  to  the  com- 
plainant against  any  use  of  them  to  the  complainant's  in- 
jury. That  such  was  the  intention  of  the  parties  is  evi- 
dent ;  and  such  intention  is  not  inconsistent  witli  a  strict 
legal  construction  of  the  instrument. 

I  shall,  therefore,  decree  that  the  bond  and  mortgage 
be  delivered  up  and  cancelled.  The  decree  must  be  with- 

YOL.  IL  O 


158  CASES  IN  CHANCEKY. 

Sims  v.  Sims. 

out  costs.  There  is  no  evidence  that  the  complainant  no- 
tified the  defendant,  before  instituting  this  suit,  of  the 
grounds  upon  which  he  claimed  relief,  or  that  the  defend- 
ant had  any  knowledge  of  the  complainant's  equities. 

CITED  in  Andrews  v.  Torrey,  1  McCar.  358;  Bush  and  Howard  v.Cushman, 
12  C.  E.  Gr.  134;  Brown  v.  Kahnweiler,  1  Stew.  314;  DeWitt  v.  VanSickle, 
2  Stew.  212. 


HEDGE  T.  SBIS  vs.  GEKRIS  SIMS,  executor,  and  others. 

The  personal  estate  is  the  only  fund  for  the  payment  of  legacies,  unless  a 
contrary  intention  appears  in  the  will. 

Where  a  legacy  is  made  an  express  charge  upon  the  land,  if  the  personal  es- 
tate in  the  hands  of  the  executor  is  sufficient  to  pay  the  legacy,  and  the  ex- 
ecutor squanders  the  estate,  the  legatee  cannot  resort  to  the  land.  The  land 
is  debtor  for  the  legacy  only,  and  not  for  the  misconduct  of  the  executor. 

Where  the  executor  has  in  his  hands  funds  sufficient  to  pay  all  the  legacies, 
and  after  paying  some  of  them,  squanders  or  misapplies  the  residue  of  the 
fund,  the  legatees  unpaid  cannot  resort  to  the  others  for  contribution  ;  the 
legatees  who  have  received  payment  are  entitled  to  the  benefit  of  their  dili- 
gence. When  there  is  -an  original  deficiency  of  assets,  the  rule  is  different ; 
and  the  rule  may  have  a  different  application  when  there  is  a  participation 
in  misapplying  the  assets  between  the  executor  and  such  legatees  as  are 
paid  their  legacies. 

The  intention  of  the  testator  is  the  essence  of  ademption  of  a  legacy.  When 
an  advancement  is  relied  upon  as  an  ademption,  two  facts  must  be  estab- 
lished, the  advancement  and  the  intention  of  the  testator  that  it  should  be 
in  satisfaction,  or  a  substitute  for  the  bequest. 

In  some  cases,  e^iity  raises  the  presumption,  and  parol  testimony  is  then  ad- 
missible, not  to  raise,  but  to  confirm  a  presumption. 


S.  A.  -Allen,  for  complainant. 
C.  S.  Green,  for  defendant. 

'THE  CHANCELLOR.  The  object  of  the  bill  is  to  collect  a 
legacy  due  the  complainant  under  the  last  will  of  his 
.father,  James  Sims.  >,  Gerris  Sims,  one  of  the  defendants, 
is  the  sole  surviving  executor  of  the  will,  and  he  and  the 
other  defendants  are  devisees  in  possession  of  real  estate 
devised  to  them  by  the  testator.  After  setting  out  the 
.the  .bill  states,  that  the  executor,  in  the  year  1850, 


MAY  TERM,  1854.  159 


Sims  v.  Sims. 


settled  the  estate  in  the  Orphans  Court  of  the  county  of 
Salem,  and  that,  by  such  settlement,  a  balance  was  found 
in  his  hands,  as  such  executor,  of  seven  hundred  and 
eighty-two  dollars  and  eighty-seven  cents,  and  that  he  ap- 
plied that  money  towards  the  payment  and  satisfaction  of 
a  certain  legacy  due  him  under  the  will,  and  refuses  to 
pay  the  legacy  of  seven  hundred  dollars,  by  the  will  be- 
queatl;ed  to  the  complainant.  The  bill  charges  that  the 
executor  is  in  failing  circumstances,  and  tljat  he  has  dis- 
posed of  all  the  personal  estate  of  the  testator  ;  that  the 
other  defendant's,  as  devisees  under  the  will,  have  taken 
possession  of  the  lands  of  the  testator  devised  to  them 
respectively,  which  constituted  all  the  real  estate  of  the 
testator.  The  bill  further  charges,  that  the  defendants 
have  respectively  received  of  the  executor's  legacies  which 
they  were  entitled  to  under  the  will,  and  insists  that  if 
the  testator's  personal  estate  is  not  sufficient,  by  reason 
of  an  application  thereof  to  the  payment  of  any  debts 
and  legacies  to  pay  the  complainant's  legacy,  then  he  is 
entitled  to  have  the  whole  of  said  legacy,  or  the  ratable 
proportion  thereof,  raised  by  a  sale  of  proportionable  parts 
of  the  real  estate  of  the  testator  devised  to,  and  in  the 
possession  of  the  defendants.  The  bill  charges  that  the 
testator's  real  estate  is  made  by  the  wiil,  chargeable  with 
the  complainant's  legacy,  and  that  the  defendants,  having 
been  paid  their  respective  legacies  out  of  the  personal  es- 
tate, they  must  each  of  them  contribute,  in  a  proper  ratio, 
to  the  payment  of  the  complainant's  legacy. 

The  prayer  is,  that  the  complainant  may  be  decreed  en- 
titled to  his  legacy,  and  that  it  may  be  paid  out  of  the 
personal  estate,  and  if  that  is  deficient,  then  that  it  may  be 
paid  out  of  the  testator's  real  estate. 

The  bill  was  answered  by  three  of  the  defendants,  Ger- 
ris  Sims,  the  executor,  and  John  and  Smith  Sims.  The 
answer  admits  that  the  executor  paid  off  all  the  debts  of 
the  testator,  and  all  the  legacies,  except  the  one  to  the 
complainant.  It  admits  the  settlement  in  the  Orphans 


1GO  CASES  IN  CHANCERY. 

Sims  v.  Sims. 

Court,  and  the  balance  found  in  the  hands  of  the  execu- 
tor, as  stated  in  the  bill  of  complaint ;  that  the  executor 
appropriated  the  sum  of  five  hundred  dollars  to  the  pay- 
ment of  a  legacy  due  him,  and  that  a  balance  was  left  in 
his  hands  of  two  hundred  and  eighty-two  dollars  and 
eighty-seven  cents,  which  was  the  whole  residue  of  the 
personal  estate  after  the  payment  of  debts  and  legacies. 
The  answer  then  states,  that  the  complainant  was  entitled 
to  the  one-eighth  of  this  residue,  and  that  he  brought 
suit  for  it  against  the  executor,  and  recovered  a  judgment, 
which  was  paid.  The  defendants  admit  that  they  are  in 
possession  of  real  estate  devised  to  them  by  the  will,  and 
claim  the  same  as  devisees.  The  answer  further  alleges, 
that  shortly  after  the  testator  made  his  will,  the  complain- 
ant being  desirous  of  erecting  a  dwelling  house  upon  the 
part  of  the  real  estate  of  the  testator  which  by  his  said 
will  he  had  devisep  to  the  complainant,  received  from  the 
testator  an  advancement  of  seven  hundred  dollars,  in  full 
payment  and  satisfaction  of  the  legacy  mentioned  in  the 
will,  and  appropriated  the  same  for  the  purpose  of  erect- 
ing a  dwelling  house  on  the  land  so  devised  to  him  by 
the  will  of  his  father,  and  which  land,  at  his  father's  death, 
became  vested  in  the  complainant,  as  such  devisee.  The 
complainant  filed  a  replication,  and  the  cause  was  heard 
upon  the  pleadings  and  proofs. 

Admitting  all  the  facts  contained  in  the  bill  to  be  true, 
the  complainant  is  not  entitled  to  relief  against  any  of 
the  defendants,  except  the  executor. 

The  bill  seeks  to  charge  these  defendants  upon  two 
grounds  :  First.  That  the  lands  which  they  are  in  posses- 
sion of  as  devisees  are  charged  with  the  payment  of  the 
pecuniary  legacies.  Second.  That  if  the  lands  are  not 
chargeable  by  the  terms  of  the  will,  the  complainant  has 
a  right  to  call  upon  the  defendants  for  contribution,  on 
the  ground  that  their  respective  legacies  have  been  paid 
in  full,  and  the  executor  having  misapplied  the  funds  in 
his  hands,  and  being  insolvent,  the  complainant  has  no 


MAY  TEEM,  1854.  161 


Sims  r.  Sims. 


other  resource  for  the  satisfaction  of  his  legacy.  I  have 
been  unable  to  discover  anything  in  the  will  to  make  the 
complainant's  legacy,  under  any  circumstances,  a  charge 
upon  the  real  estate.  The  bill  specifies  no  particular  clause 
or  part  of  the  will  upon  which  the  complainant  relies  for 
this  purpose,  nor  was  any  pointed  out  on  the  argument. 
The  personal  estate  is  the  only  fund  for  the  payment  of 
legacies,  unless  a  contrary  intention  appears  in  the  will. 
The  real  estate  is  not  charged  with  the  payment  of  lega- 
cies, unless  the  testator  expressly  declares  such  to  be  his 
intention,  or  unless  such  intention  can  be  inferred  from 
the  language  of  the  will,  or  from  the  disposition  the  tes- 
tator makes  of  his  property.  In  this  will,  such  inten- 
tion is  not  declared,  nor  can  it  be  inferred  from  the 
general  tenor  of  the  will,  or  from  the  disposition  the  tes- 
tator has  made  of  his  property.  But  if  the  legacy  had 
oeen  made  an  express  charge  upon  the  land,  the  complain- 
ant would  not,  upon  the  facts  stated  in  his  bill,  be  entitled 
to  relief  against  these  defendants.  It  appears  that,  after 
the  executor  had  paid  the  defendants  their  respective  lega- 
cies, there  remained  in  the  executor's  hands  siiffipient  per- 
sonal estate  of  the  testator  to  satisfy  the  complainant's 
legacy.  That  fund  the  complainant  was  entitled  to.  That 
the  executor  has  squandered  the  fund,  and  become  insol- 
vent, gives  to  the  complainant  no  relief  against  the  lands 
devised  to  the  defendants ;  and  upon  this  principle,  that 
the  land  is  debtor  for  the  legacies  only,  and  not  for  the 
misconduct  of  the  executor.  Roper  on  Legacies  498 ;  1 
P.  Wms.  505  ;  3  Ball  <&  Beatty  39  ;  5  Yes.  736. 

Nor  is  the  complainant  entitled  to  call  upon  the?e  de- 
fendants to  refund  any  portion  of  the  personal  estate 
which  they  received  from  the  executor  in  payment  of  tlu-ir 
legacies.  It  is  admitted  that,  after  their  legacies  were  paid, 
there  remained  in  the  hands  of  the  executor  sufficient 
assets  to  discharge  the  complainant's  legacy.  If  this  is 
BO,  the  complainant  must  resort  to  that  fund.  If  the  ex- 
ecutor has  squandered  it,  and  is  insolvent,  it  is  the  inis- 

o* 


162  CASES  IN  CHANCERY. 

Sims  v.  Sims. 

fortune  of  the  complainant,  and  not  the  fault  of  the  de- 
fendants. Their  diligence  has  secured  the  payment  of 
their  legacies.  There  is  no  reason  why  they  should  stand 
security  for  the  executor.  A  legatee,  under  such  circum- 
stances, is  entitled  to  the  advantage  of  his  diligence.  If 
there  had  been  an  original  deficiency  of  assets,  the  case 
would  be  different.  But  the  bill  expressly  charges,  that 
after  the  executors  had  paid  the  other  defendants,  there 
remained  still  in  his  hands  more  than  assets  enough  to 
pay  the  complainant.  Lupton  v.  Lupton,  2  J.  C.  R.  625  / 
Walcott  v.  Hall,  2  Bro.  305.  The  following  cases  lay  down 
the  rule,  and  show  the  distinction  between  a  legatee  and 
creditor.  (Anon.}  1  P.  Wms.  495  ;  (Anon.}  1  Vern.  162 
Hardwick  v.  Myno,  1  Ans.  112.  It  is  true,  if  these  defend- 
ants had  any  participation  with  the  executor  in  the  mis- 
application of  the  assets,  a  very  different  question  would 
be  presented.  But  although  this  was  suggested  in  the 
argument,  the  bill  does  not  put  the  complainant's  right 
to  relief  upon  this  ground,  nor  is  there  such  proof  as  would 
warrant  such  a  conclusion. 

As  to  these  defendants,  therefore,  upon  the  pleadings, 
the  complainant  is  not  entitled  to  relief,  and,  as  to  them, 
the  bill  must  be  dismissed. 

As  against  Gerris  Sims,  the  executor,  the  complainant 
is  entitled  to  a  decree  against  him,  unless  he  has  established 
by  proof  the  defence  set  up  in  his  answer,  that  the  testator, 
after  making  his  will,  satisfied  the  legacy. 

To  establish  this  issue  in  his  favor,  this  defendant  has 
•poved  that  the  testator,  after  the  execution  of  the  will, 
advanced  to  his  son,  the  complainant,  seven  hundred  dol- 
lars; that  the  testator  declared  that  such  advancement 
was  in  satisfaction  of  the  legacy,  and  that  since  the  testa- 
tor's death  the  complainant  has  himself  declared  that  the 
testator  paid  him  seven  hundred  dollars  in  lieu  of  the  leg- 
acy. The  evidence  to  establish  the  fact  is  conclusive  and 
satisfactory,  and  the  defence  set  up  must  prevail,  unless 
the  objection  interposed  by  the  complainant,  to  wit,  that 


MAY  TEEM,   1854. 


Sims  v.  Sims. 


the  parol  testimony  is  inadmissible,  can  avail  the  com- 
plainant. 

The  intention  of  the  testator  is  the  very  essence  of 
ademption.  Two  facts,  therefore,  must  necessarily  be  es- 
tablished, the  advancement,  and  the  intention  of  the  tes- 
tator that  such  advancement  was  in  satisfaction,  or  a  sub- 
stitute for  the  bequest. 

In  the  instance  of  parent  and  child,  equity  raises  the 
presumption  that  the  legacy  is  intended  as  a  portion, 
whether  the  will  so  expresses  it  or  not.  If  afterwards  the 
parent  advance  a  portion  to  the  child,  the  legacy  is  satis- 
fied, the  advancement  and  the  legacy  being  for  the  same 
purpose.  Parol  testimony  is  admitted  therefore,  not  to 
raise,  but  to  confirm  a  presumption.  Roper  on  L.  272-3-4:, 
and  cases  there  cited.  In  2  American  Lead.  Cos.  435,  the 
cases  are  collected,  and  the  admission  of  such  testimony 
seems  to  be  very  firmly  settled  upon  authority.  In  Ores- 
ley's  Eq.  Ev.)  213,  it  is  said  the  'reason  is  shortly  this :  If 
a  person  who  has  inserted  in  his  will  a  legacy  for  a  par- 
ticular purpose,  afterwards  executes  that  purpose  himself 
in  his  lifetime,  he  is  presumed  to  have  intended  to  cancel 
the  legacy,  which  is  consequently  held  to  be  adeemed. 
Secondly,  a  father  leaving  a  legacy  to  a  child,  is  presumed 
to  have  intended  it  for  the  particular  purpose  of  fulfilling 
his  moral  obligation  of  portioning  that  child.  It  follows 
that  parol,  or  any  other  kind  of  extrinsic  evidence,  may 
be  adduced  to  prove  that  he  did  or  did  not,  intend  that 
legacy  as  his  child's  portion,  or  that  he  did  or  did  not, 
intend  to  cancel  it. 

In  this  case,  it  only  became  necessary  for  the  executor 
to  offer  parol  evidence,  in  answer  to  that  which  .  the  com- 
plainant introduced  to  rebut  the  presumption  which  was 
in  favor  of  the  executor,  that  the  legacy  was  satisfied  by 
the  advancement.  The  case  was  with  the  defendant  with- 
out his  being  obliged  to  resort  to  such  evidence.  If  it  was 
proper  for  the  complainant  to  overcome  this  presumption 
by  parol,  it  was  equally  proper  for  the  defendant  to  resort 


164  CASES  IN  CHANCERY. 

Lippincott  v.  Ridgway. 

to  the  same  kind  of  testimony  in  reply.  In  either  event, 
excluding  the  evidence  or  admitting  it,  the  executor  is 
entitled  to  a  decree  in  his  favor. 

This  course  came  up  on  a  rehearing ;  and  upon  a  review 
of  the  case,  I  do  not  think  the  burthen  of  the  whole  costs 
of  the  suit  should  fall  upon  the  complainant.  The  former 
decree,  made  by  the  late  Chancellor,  was,  if  my  views  are 
correct,  erroneous.  It  was  the  result,  I  think,  of  a  misap- 
prehension of  the  case,  which  arose  from  the  manner  in 
which  the  case  was  submitted,  the  real  points  in  contro- 
versy not  having  been  presented  to  the  court .  The  bill 
must  be  dismissed  with  costs,  not  including  the  cost  upon 
the  first  hearing,  or  that  attending  the  opening  of  the  first 
decree. 


WALLACE  LIPPINCOTT  and  others  vs.  AQUILLA  S.  RIDGWAY 
and  REBECCA  ZILLY. 

Hope  Cowperthwait,  by  her  will,  directed  her  trustees  to  pay  a  certain  fund, 
as  follows  :  "unto  such  of  the  brothes and  sisters  of  my  daughter  Hannah 
and  their  children  ;  and  in  such  proportion  as  may  said  daughter  H.  shall, 
by  her  last  will  and  testament,  or  writing  in  nature  thereof,  signed  by  her 
hand,  and  attested  by  two  credible  witnesses,  direct  and  appoint. 

This  language  gives  to  the  donee  a  discretion  as  to  a  selection  between  the 
objects  named. 

After  the  language  quoted  above,  follows  "my  will  being  that  my  said 
daughter  shall  in  such  case  have  power  to  dispose  of  the  same  among  her 
brothers  and  sisters,and  their  children, in  such  proportions  as  she  may  think 
fit,  but  to  no  other  person  or  persons  whatsoever." 

This  limited  the  power  of  appointment,  and  entitled  each  of  the  brothers  and 
Bisters  of  Hannah  Lippincott  to  a  portion  of  the  fund. 


J.  P.   Bradley,  in  support  of  demurrer. 
A.  Browning,  contra. 

THE  CHANCELLOR.     The  question  in  controversy  arises 
upon  the  tenth  item,  or  clause,  in  the  will  of  Hope  Cow- 


MAY  TEEM,  1854.  165 

Lippincott  v.  Ridgway. 

perthwait,  late  of  the  county  of  Burlington,  deceased. 
The  clause  of  the  will  is  as  follows  : 

"  Fourth.  I  give  and  bequeath  unto  my  son  "Wallace, 
and  my  grandson,  Aquilla  S.  Ridgway,  and  to  the  survi- 
vors of  them,  and  to  the  executors,  administrators,  and 
assigns  of  such  survivor,  the  remaining  equal  fourth  part 
of  the  rest,  residue,  and  remainder  of  my  personal  estate, 
whatsoever  and  wheresoever,  upon  and  for  the  trusts,  in- 
terests, and  purposes,  and  with  and  subject  to  the  powers 
and  proviso  herein  after  mentioned  and  expressed  of  and 
concerning  the  same,  that  is  to  say  upon  trust,  that  they, 
the  said  Wallace  Lippincott  and  Aquilla  S.  Ridgway,  and 
the  survivor  of  them,  and  the  executors,  administrators, 
and  assigns  of  such  survivor,  shall  place  the  said  last  men- 
tioned one-fourth  part  of  my  personal  estate  at  interest 
upon  good  and  sufficient  security,  and  shall  pay  all  the 
interest  that  shall  arise  thereon  yearly,  as  it  shall  become 
due,  to  my  daughter,  Hannah  Lippiiicott,  so  long  as  she 
shall  live.  And  also  in  trust,  to  pay  unto  my  said  daughter, 
Hannah  Lippincott,  so  much  of  the  principal  money  of 
the  said  last  mentioned  fourth  part  as  my  said  daughter 
Hannah  shall  from  time  to  time,  by  writing  under  her 
hand,  and  attested  by  two  credible  witnesses,  require  of 
the  said  trustees.  But  in  the  event  that  my  daughter 
Hannah  shall  marry,  then  it  is  my  will  that  the  in- 
terest and  principal  money,  above  directed  to  be  paid 
to  her  be  paid  into  her  own  hands,  for  her  sole  and 
separate  use,  and  her  receipt,  notwithstanding  her  cover- 
ture, shall  be  a  sufficient  discharge  to  the  said  trustees  there- 
for. 

"  My  intent  being  that  the  same  shall  in  no  wi.se  be 
subject  to  the  contracts,  debts,  or  control  of  any  husband 
the  may  marry. 

"  And  from  and  immediately  after  the  decease  of  my 
said  daughter  Hannah,  in  case  she  shall  marry,  and  have 
children  living  at  her  death,  or  descendants  of  such  chil- 
dren, then  it  is  my  will  that  what  shall  remain  undisposed 


166  CASES  IN  CHANCERY. 

Lippincott  u.  Ridgway. 

OT.  of  the  said  last  mentioned  fourth  part  of  the  residue 
oi  my  personal  estate,  with  its  accumulated  interest,  shall 
belong  to,  and  vest  in  the  children  of  my  said  daughter 
Hannah,  equally  between  them,  if  more  than  one,  to  be 
paid  to  them  as  they  respectively  attain  the  age  of  twenty- 
one  years.  But  if  any  child  of  my  said  daughter  Hannah 
shall  die  before  bearing  issue  living  at  the  time  of  the 
death  of  the  said  Hannah,  then  such  issue  shall  stand  in 
the  place  of  their  deceased  parent,  and  take  that  parent's 
share,  and  if  more  than  one,  equally  between  them. 

"  But  in  case  my  said  daughter  Hannah  shall  die  with- 
out any  child,  or  descendants  of  such  child,  living  at  her 
death,  then  it  is  my  will  that  the  said  trustees  do  pay  such 
part  of  the  last  mentioned  fourth  of  the  residue  of  my 
personal  estate  as  may  remain  undisposed  of  at  the  time 
of  the  death  of  my  said  daughter  Hannah,  with  its  accu- 
mulated interest,  unto,  such  of  the  brothers  and  sisters  of 
my  said  daughter  Hannah,  and  their  children,  and  in  such 
proportions  as  my  said  daughter  Hannah  shall,  by  her 
last  will  and  testament,  or  writing  in  nature  thereof, 
signed  by  her  hand,  and  attested  by  two  credible  wit 
nesses,  direct  and  appoint :  my  will  being  that  my  said 
daughter  Hannah  shall  in  such  case  have  power  to  dis- 
pose of  the  same  among  her  brothers  and  sisters,  and 
their  children,  in  such  proportions  as  she  may  think  fit, 
but  to  no  other  person  or  persons  whatsoever.  And  in 
case  my  said  daughter  Hannah  shall  die  not  leaving  any 
child  at  her  death,  or  descendant  of  such  child,  and  without 
having  made  such  appointment  and  disposition  of  what 
shall  then  remain  undisposed  of,  of  the  said  last  mentioned 
fourth  part  of  the  residue  of  my  personal  estate  as  she  is 
above  empowered  to  make,  then  it  is  my  will,  and  I  do 
hereby  direct  the  said  trustees  to  pay  the  same  unto  the 
brothers  and  sisters  of  my  said  daughter  Hannah  in  equal 
proportions,  the  share  of  such  of  the  sisters,  however,  as 
shall  then  be  married,  to  be  paid  to  their  trustee  for  their 
separate  use,  free  from  their  husbands'  control,  the  chil- 


MAY  TEEM,  1854  16T 

Lippincott  v.  Ridgway. 

dren  of  any  deceased  brother  or  sister  to  stand  in  the 
place  of  his,  her,  or  their  parent,  and  take  that  parent's 
share  equally  between  them,  if  more  than  one." 

The  one-fourth  part  of  the  residue  of  the  personal 
estate  of  the  testatrix  amounted  to  the  sum  of  nine  thou- 
sand two  hundred  and  eighty-nine  dollars.  This  sum,  to- 
gether with  considerable  interest  which  had  then  accrued 
thereon,  the  executors  paid  over  to  Aquilla  S.  "Ridgway, 
as  surviving  trustee,  who  held  the  same  during  the  life- 
time of  Hannah  Lippincott.  Hannah  Lippincott  died  in 
the  year  1849.  She  made  no  disposition  of  the  trust  fund 
during  her  lifetime.  She  drew  from  the  hands  of  the  trus- 
tee a  part  of  the  interest  only.  It  is  alleged  that,  at  the 
time  of  her  death,  the  principal  money,  with  the  accumu- 
lated interest  in  the  hands  of  the  trustee,  amounted  to  the 
sum  of  twenty-five  thousand  dollars.  Hannah  Lippincott 
left  a  will,  which  had  been  subscribed  in  the  presence  of 
two  witnesses.  By  her  will,  after  reciting  therein,  in  part, 
the  bequest  of  Hope  Cowperthwait  of  the  undivided 
fourth  part  of  her  personal  estate  in  the  said  trust,  and 
that  the  whole  of  the  said  one-fourth  part  of  the  said  re- 
sidue then  remained  undisposed  of,  and  had  been  largely 
increased  by  interest,  and  remained  in  the  hands  of 
Aquilla  S.  Ridgway,  as  surviving  trustee,  did,  "  of  and 
concerning  the  said  one-fourth  of  said  residue,  and  accumu- 
lated interest  thereon,  give,  order,  direct,  limit,  and  ap- 
point, that  the  said  Aquilla  S.  Ridgway,  trustee  as  afore- 
said, should  pay  to  Rebecca  Zilly,  out  of  said  residue  and 
accumulated  interest,  the  sum  of  one  hundred  dollars, 
and  should  retain  all  the  residue  thereof  to  and  for  his  own 
use." 

Rebecca  Zilly,  one  of  the  defendants,  is  the  only  sur- 
viving sister  of  Hannah  Lippincott.  The  complainants, 
Mary  S.  Ilaines,  Wallace  Lippincott,  and  Sarah  Ann  Pan- 
coast,  are  the  only  children  of  Wallace  Lippincott,  de- 
ceased. Aquilla  S.  Ridgway,  the  defendant,  is  the  only 
child  of  Martha  Woolston,  deceased,  who  was  a  sister  of 


168  CASES  IN  CHANCERY. 


Lippiiicott  v.  Ridgway. 


Hannah  Lippincott.  The  complainants  are  entitled  to 
one-third  part  of  the  fund  in  dispute,  if  Hannah  Lippin- 
cott has  failed  to  execute  the  power  conferred  upon  her 
by  the  will  of  Hope  Cowperthwait.  These  facts  are  stated 
by  the  bill.  They  are  to  be  assumed  as  true,  upon  the  de- 
cision of  the  case  upon  bill  and  demurrer. 

But  a  single  question  is  involved,  whether  the  will  of 
Hope  Cowperthwait  gave  to  Hannah  Lippincott  the  power 
of  exclusive  appointment,  by  last  will,  as  to  her  brothers 
and  sisters,  and  their  children  ?  The  donee's  construction 
of  the  power  was,  that  it  did ;  and  with  that  view,  she 
has  attempted  to  execute  it.  At  her  decease,  she  left  one 
sister  her  surviving,  two  nieces,  and  two  nephews.  To 
the  two  nieces,  and  to  one  of  the  nephews,  she  appointed 
no  part  of  the  fund.  She  has  exercised  the  appointment 
as  an  exclusive  one.  The  complainants  contended,  that  all 
the  objects  of  the  appointment  referred  to  are  entitled, 
by  the  power  of  appointment,  to  some  substantial  portion 
of  the  fund,  and  that  not  having  received  it,  there  is  a  de- 
fective execution  of  the  power,  and  that  the  fund  must 
be  distributed  as  Hope  Cowperthwait  directed  it  should 
be  in  the  event  of  Hannah  Lippincott's  dying  not  leaving 
any  child,  and  without  having  made  such  appointment 
and  disposition  of  the  fund  by  last  will  as  she  was  em- 
powered to  do. 

The  intention  of  the  donor  of  the  power  must  be  car- 
ried out.  As  there  is  nothing  before  the  court  from  which 
that  intention  can  be  ascertained,  except  the  seventh  item 
or  clause  of  the  will,  that  must  be  our  only  guide  in  seek- 
ing for  the  intention.  There  are  no  technical  rules  to  em- 

O 

barrass  the  court  in  giving  a  construction  to  this  power. 
There  are  numerous  authorities  in  the  books  where  con- 
structions have  been  given  to  powers  of  appointment  very 
similar  to  the  one  before  us.  Most  of  them  are  collected 
in  Sugden  on  Powers,  §  5,  561.  The  difficulty  in  this  case 
has  arisen  from  the  fact,  that  the  donor,  after  creating  a 
power  free  from  ambiguity  or  doubt,  proceeded  herself  to 


MAY  TEEM,  1854.  169 

Lippincott  v.  Ridgway. 

declare  what  she  intended  by  that  power,  and  which  in- 
tention was  at  variance  with  the  power  previously  created 
by  the  natural  and  plain  import  of  the  language  employed. 
In  the  first  place,  she  directed  her  trustees  to  pay  the  fund 
"  unto  such  of  the  brothers  and  sisters  of  my  daughter 
Hannah,  and  their  children,  and  in  such  proportions  as 
my  said  daughter  Hannah  shall,  by  her  last  will  and  tes- 
tament, or  writing  in  nature  thereof,  signed  by  her  hand, 
and  attested  by  two  credible  witnesses,  direct  and  ap- 
point." If  the  will  had  stopped  here,  no  difficulty  could 
have  arisen.  It  is  manifest  that  a  discretion  is  given  to 
the  donee,  as  to  a  selection  between  the  object  named, 
the  appointment  was  to  be  made  unto  "  such "  of  the 
brothers  and  sisters  and  their  children,  as  she  should  di- 
rect and  appoint.  This  language  created  an  exclusive 
power  of  appointment.  But  it  was  said  that  the  appoint- 
ment was  to  be  made  to  the  objects  named  in  "  such  pro- 
portions" as  the  donee  should  direct  and  appoint.,  and  that 
the  words  "  such  proportions"  could  not  be  applicable,  if 
only  one  of  the  objects  named  could  be  selected.  But  the 
phraseology  must  not  be  taken  in  detached  parts.  If  the 
language  had  been  "  unto  such  of  the  brothers  and  sisters 
of  my  daughter  Hannah,  and  their  children,  in  such  pro- 
portions as  she  by  last  will  shall  direct,"  her  discretion 
would  have  extended  to  the  proportions  only.  But  the 
language  being  to  such  of  the  brothers  and  sisters,  &c., 
and  in  such  proportions  as  she  by  last  will  shall  direct," 
the  discretion  of  the  donee  is  not  limited  to  the  proportions, 
but  extends  to  the  objects  of  the  appointment  also.  In 
Wollen  v.  Tanner,  5  Ves.  jun.  218,  the  language  of  the 
power  was  "  unto  and  amongst  all  such  child  or  children 
of  Susannah  Wollen  (wife  of  Thomas  Wollen  the  elder, 
and  daugther  of  Elizabeth  Winter,)  in  such  parts,  shares, 
and  proportions,  manner  and  form,  as  James  Winter 
should,  by  any  deed  or  deeds,  &c.,  direct,  appoint,"  &c. 
Not  only  the  word  all  was  urged  as  an  argument  against 
an  exclusive  appointment,  but  the  words  parts,  shares,  and 
VOL.  ii.  p 


170  CASES  IN  CHANCERY. 

Lippincotfc  v.  Ridgway. 

proportions.  The  Chancellor  said,  the  fault  of  the  plain- 
tiff's argument  is,  that  they  stop  at  the  word  "  all."  They 
mnst  go  on,  and  finish  the  sentence  ;  and  then  it  is  "  all 
such  child  or  children  as  he  shall  appoint." 

It  was  further  argued,  that  an  exclusive  appointment 
would  not  answer  the  language  "  unto  such  of  my  brothers 
and  sisters ;"  that  the  language  is  imperative  that  a  brother 
must  have  some  of  the  fund  and  a  sister  some  ;  and  that 
if  the  donee  could  appoint  exclusively  to  a  brother,  the  in- 
tention of  the  donor  would  be  defeated,  because  the 
"sisters"  as  well  as  brothers,  are  included  in  the  Ian 
guage  used.  But  it  is  impossible  to  give  this  force  and  effect 
to  the  conjunction  "  and"  without  depriving  the  word 
"  such"  of  all  pertinence  in  the  sentence.  In  the  case  of 
Swift  on  the  demise  ofHuntley  and  wife  v.  Gregson  1  T.  It. 
432,  under  the  power  of  appointing  a  real  estate  "  to  the 
use  of  such  child  and  children,  and  for  such  estate  and 
estates  and  purposes  as  the  husband  should  appoint,"  and 
in  default  of  appointment  the  estate  was  limited  to  the 
use  of  all  and  every  child  and  children  of  the  marriage 
in  fee,  the  word  or  was  read  for  and,  and  an  exclusive  ap- 
pointment was  held  to  be  good. 

But  in  this  case  the  donor  has  chosen  to  give  her  own 
interpretation  to  the  language  used,  and  has  declared  the 
construction  to  be  put  upon  the  power.  This  she  had  a 
right  to  do.  Her  language  is,  "  my  will  being  that  my  said 
daughter  shall  in  such  case  have  power  to  dispose  of  the 
same  among  her  brothers  and  sisters,  and  their  children, 
in  such  proportions  as  ehe  may  think  fit,  but  to  no  other 
person  or  persons  whatsoever."  It  was  argued  on  behalf 
of  the  defendant,  that  this  was  not  intended  to  qualify  or 
1  imit  the  power  of  appointment  previously  conferred,  but 
was  meant  only  as  a  more  emphatic  designation  of  the 
objects  to  which  the  appointment  was  to  be  confined.  But 
the  language  is  too  direct  and  unequivocal  to  admit  of 
this  construction.  She  used  the  word  among  her  brothers 
and  sisters,  which  is  inconsistent  with  an  exclusive  ap 


MAY  TEEM,  1854.  171 


Gifford  v.  N.  J.  Railroad  Co. 


pointment,  standing,  as  this  word  does,  without  any  quali- 
fications of  its  natural  import  and  signification.  The  po- 
sition of  the  word  "  such"  in  the  sentence  confines  the 
direction  of  the  donee  to  the  proportions.  She  in  fact  de- 
clares, that  when  she  used  the  word  such  in  the  preceding 
sentence,  she  meant  it  to  qualify  "proportions"  and  not 
the  objects  of  the  appointment.  My  opinion  therefore  is 
that  the  power  lias  not  been  properly  executed,  and  that 
the  brothers  and  sisters  of  Hannah  Lippincott  were,  each 
and  all  of  them,  entitled  to  a  portion  of  the  trust  fund 
under  an  execution  of  the  power.  Hannah  Lippincott 
having  failed  to  execute  the  power,  the  surviving  trustee 
must  pay  the  trust  fund  to  the  complainants  and  Rebecca 
Zilly  in  equal  proportions,  in  conformity  to  the  directions 
of  the  will  of  Hope  Cowperthwait. 

The  demurrer  must  be  overruled  with  costs. 


ARCHER   GIFFORD   vs.    THE  NEW    JERSEY  RAILROAD  AND 
TRANSPORTATION  COMPANY  and  others- 


A  court  of  equity  will  interfere  on  behalf  of  a  single  stockholder,  if  he  can 
show  that  the  corporation  are  employing  their  statutory  powers,  funds,  &c., 
for  the 'accomplishment  of  purposes  not  within  the  scope  of  their  institution, 
and  an  injunction  in  such  cases  will  be  granted.  But  it  is  well  settled  that, 
acting  within  the  scope  and  in  obedience  to  the  provisions  of  the  constitu- 
tion of  the  corporation,  the  will  of  the  majority,  duly  expressed  at  a  le- 
gally constituted  assembly,  must  govern, 

The  legislature  may  give  additional  powers  from  time  to  time,  to  corporations ; 
and  acts  of  the  corporation,  in  pursuance  of  such  authority,  are  binding,  un- 
less they  conflict  with  vested  rights  or  impair  the  obligation  of  contracts. 

By  the  supplement  to  the  charter  of  the  Newark  and  Bloomficld  Railroad  Com- 
pany, passed  March  150th,  18.W,  §  3,  it  is  enacted,  that  nothing  in  the  sup- 
plement contained  shall  be  construed  to  impair,  in  any  manner,  any  rever- 
sionary interest  or  vested  right  which  the  state,  or  any  incorixn-aed  company 
or  companies,  or  any  individual  may  possess  under  the  charter  of  the  Bridge 
Company.  This  Provision  is  also,  in  effect,  contained  in  the  constitution. 

A  stockholder  of  the  Bridge  Com]>any  has  a  vested  right  in  tho  value  of  his 


172  CASES  IN  CHANCERY. 

Gifford  v.  N.  J.  Railroad  Co. 

stock  and  interest  in  the  franchise  of  exclusive  tolls,  and,  as  amU?/  >  to  This, 
an  interest  in  the  exclusive  right  of  building  bridges  over  the  rivei  4  fossaic 
and  Hackensack. 

Any  act  of  the  incorporation  impairing  these  rights  of  astookholdtfkVJ  without 
his  consent,  either  express  or  implied,  would  not  be  binding  on  him  under 
the  above  provisions,  except  in  a  proceeding  authorizing  the  taking  of  pri- 
vate property  for  public  uses  upon  making  compensation.  But  long  acqui- 
escence will  be  considered  as  equivalent  to  a  consent,  and  whatever  ground 
of  equity  an  individual  stockholder  may  have  had,  a  counter  equity  may 
arise  from  lapse  of  time. 

The  supplement  to  the  Newark  and  Bloomfield  Railroad  Company  does  not 
contravene  the  article  of  the  constitution  of  this  state,  which  declares  that 
every  law  shall  embrace  but  one  object,  and  that  shall  be  expressed  in  the 
title,  as  the  objects  in  the  statute  are  parts  of  the  same  enterprise,  and 
have  a  proper  relation  to  one  another. 

The  complainant  filed  his  bill  for  an  injunction  to  re- 
strain the  New  Jersey  Railroad  Company  from  building  a 
bridge,  on  the  ground  that  it  would  impair  his  vested 
rights,  as  a  stockholder  in  a  bridge  company,  and  depre- 
ciate his  stock.  The  case  is  sufficiently  stated  in  the  ad 
visory  opinion  of  Robert  Vanarsdale,  esq.,  master,  called 
to  advise  with  the  Chancellor  in  the  case. 

THE  MASTER.  The  New  Jersey  Railroad  and  Transporta- 
tion Company,  by  their  charter,  March  7th,  1832,  were  au- 
thorized to  construct  their  road  from  New  Brunswick  to 
some  convenient  point  on  the  Hudson  river  opposite  the 
city  of  New  York,  also  to  purchase  the  turnpike  roads  and 
bridges  on  the  route  of  their  railroad,  and  all  or  any  of  the 
stock  of  such  companies,  and  to  construct  such  bridges 
over  the  Passaic  and  Hackensack,  with  the  consent  of  the 
Bridge  Company,  as  might  be  necessary  for  the  enjoying 
the  privileges  of  the  act  of  incorporation. 

November  21st,  1832.  The  New  Jersey  Railroad  Com- 
pany agreed  with  the  proprietors  of  the  bridges  over  the 
rivers  Passaic  and  Hackensack  to  buy  the  stock  of  such 
of  the  stockholders  of  the  latter  company  as  desired  to 
sell  at  $150  per  share,  and  were  permitted  to  constnict  a 
passage  way  over  said  rivers,  either  alongside  of  or  over 
said  bridges,  so  as  not  to  interrupt  the  travel  over  the  same. 


MAY  TERM,  1854.  173 


Giffordrc.  N.  J.  Railroad  Co. 


Of  the  1000  shares  of  stock  of  the  Bridge  Company,  932 
were  purchased  by  the  New  Jersey  Railroad  Company, 
and  ten  more  are  held,  by  several  individuals,  in  trust  for 
the  Railroad  Company. 

Bridges  were  constructed,  in  pursuance  of  said  agree- 
ment, over  the  Passaic  and  Hackensack,  and  have  been 
used  to  the  present  time  by  the  Railroad  Company  for  the 
purposes  of  their  road. 

The  Morris  and  Essex  Railroad,  which  terminates  at 
Newark,  connects,  also,  at  that  place  with  the  New  Jersey 
Railroad,  and  thence  the  company's  trains  of  cars  pass 
over  the  latter  road  to  Jersey  City. 

March  20th,  1852.  The  Bloomfield  Railroad  was  char- 
tered, and  by  a  supplement,  passed  February  4th,  1853, 
they  were  authorized  to  construct  a  bridge  over  the  Passaic 
river,  and  connect  with  a  branch  with  the  New  Jersey 
Railroad,  by  agreement  with  the  latter  company.  The 
New  Jersey  Railroad  Company  were  also,  by  the  same 
supplement,  authorized  to  build  such  bridge  and  branch 
road,  the  river  to  be  crossed  at  a  point  not  less  than  200 
yards  above  the  turnpike  bridge  on  said  river. 

October  13th,  1853.  The  New  Jersey  Railroad  Company 
agreed  with  the  Morris  and  Essex  Railroad  to  build,  with 
the  consent  of  the  Bridge  Company,  a  bridge  over  the 
Passaic  river,  at  the  foot  of  Division  street,  and  a  branch 
road  connecting  with  their  main  road,  so  that  the  trains 
of  the  Morris  and  Essex  Railroad  could  pass  witli  their 
locomotives,  without  detaching  them  as  heretofore,  and' 
passing  through  Newark  with  horses  to  the  New  Jersey 
Railroad  junction. 

December  30th,  1853.  The  Bridge  Company,  at  a  meet- 
ing for  that  purpose,  gave  their  consent  to  the  New  Jer- 
sey Railroad  Company  to  build  the  bridge  in  question  by 
a  vote  of  all  the  stockholders  present  at  the  meeting.  The 
complainant,. who  is  a  stockholder  in  the  Bridge  Company 
and  the  owner  of  ten  shares  of  stock,  having  inistaken 
the  hour  of  the  meeting,  did  not  reach  the  place  of  meet- 

p* 


174  CASES  IN  CHANCERY. 

Gifford  v.  N.  J.  Railroad  Co. 

ing  until  after  the  adjournment,  and  offered  a  written  pro- 
test against  the  proceedings  of  the  meeting,  which  was 
not  received,  on  the  ground  that  the  meeting  had  ad- 
journed. 

The  complainant  files  his  bill  for  an  injunction  to  re- 
strain the  New  Jersey  Railroad  from  building  the  bridge, 
on  the  ground,  that  it  will  impair  his  vested  rights,  as  a 
stockholder  in  the  Bridge  Company,  and  depreciate  his 
stock. 

It  is  a  bill  filed  by  a  single  stockholder,  dissenting  from 
the  act  of  a  majority  of  the  corporation. 

It  is  well  settled,  "  that  a  court  of  equity  will  interfere 
on  behalf  of  a  single  stockholder,  if  he  can  show  that  the 
corporation  are  employing  their  statutory  powers,  funds, 
<fec.,  for  the  accomplishment  of  purposes  not  within  the 
scope  of  their  institution,  and  an  injunction  in  such  cases 
will  be  granted."  Grant  on  Corporations  290  ;  Ward  v. 
Society  of  Attorneys,  1  Coll.  370. 

It  is  equally  well  settled,  "  that  acting  within  the  scope 
and  in  obedience  to  the  provisions  of  the  constitutions  of 
the  corporation,  the  will  of  the  majority,  duly  expressed 
at  a  legally  constituted  assembly,  must  govern."  Ib.  73. 

The  legislature  may  give  additional  powers,  from  time 
to  time,  to  corporations,  and  acts  of  the  corporation,  in 
pursuance  of  such  authority,  are  binding,  unless  they  con- 
flict with  the  vested  rights  or  impair  the  obligation  of 
contracts,  according  to  the  provision  of  statutes  or  the  con- 
stitution of  State. 

By  the  supplement  to  the  charter  of  the  Newark  and 
Bloomfield  Railroad  Company,  passed  March  26th,  1852, 
§  3,  it  is  enacted,  that  nothing  in  this  supplement  shall 
be  so  construed  as  to  impair,  in  any  manner,  any  rever- 
sionary interest  or  vested  right  which  the  state,  or  any 
incorporated  company  or  companies,  or  any  individual, 
may  possess  under  »the  charter  of  the  Bridge  Company. 
This  provision  is  also,  in  effect,  contained  in  the  article  of 
the  constitution  restraining  the  legislature  from  passing 
any  act  impairing  the  obligation  of  contracts. 


MAT  TERM,  1854  175 


Gifford  v.  N.  J.  Railroad  Co. 


What  are  the  vested  rights  of  a  stockholder  of  the 
Bridge  Company  ?  They  are,  in  regard  to  this  question 
and  the  value  of  his  stock  and  interest  in  the  franchise 
of  exclusive  tolls,  and,  as  ancillary  to  this,  an  interest  in 
the  exclusive  right  of  building  bridges  over  the  rivers 
Passaic  and  Hackensack.  Any  act  of  the  incorporation 
impairing  these  rights  of  a  stockholder  without  his  con- 
sent, either  express  or  implied,  would  not  be  binding  on 
him  under  the  above  provisions,  except  in  a  proceeding 
authorizing  the  taking  of  private  property  for  public  uses 
upon  making  compensation. 

The  main  question  to  be  considered  is,  whether  the  vote 
of  a  majority  of  the  stockholders  of  the  Bridge  Company 
is  sufficient  to  consent  to  t  he  construction  of  the  bridge 
under  the  agreement  of  the  New  Jersey  Railroad  Company 
with  the  Morris  and  Essex  Railroad  Company. 

In  pursuance  of  the  agreement  of  the  New  Jersey  Rail- 
road Company  with  the  Bridge  Company,  in  1832,  most 
of  the  stockholders  of  the  Bridge  Company  sold  out  their 
shares  to  the  former  company  at  an  advance  of  fifty  per 
cent,  on  the  par  value  of  their  stock,  or  exchanged,  at  the 
above  valuation,  for  stock  in  the  New  Jersey  Railroad 
Company  at  par,  thus  choosing  to  embark  in  the  new  en- 
terprise, and  the  two  companies  became  united  in  interest, 
with  the  exception  of  the  holders  of  a  few  shares  of  the 
Bridge  Company,  who  declined  to  sell.  Bridges  were 
built  over  the  Passaic  and  Hackensack  for  the  accommo- 
dation of  the  railroad  track  without  any  apparent  oppo- 
sition, and  this  privilege  has  been  enjoyed  to  the  present 
time,  a  period  of  over  twenty  years.  The  complain  nut. 
must  be  considered  as  having  consented  to  this  agree- 
ment ;  he  purchased  five  of  his  shares  from  William 
Wright,  August  3d,  1833,  the  remaining  five  from  the  ex- 
ecutors of  Andrew  Bell,  December  2d,  1844.  The  an- 
swer states  that  William  Wright  had  signed  the  foregoing 
agreement,  and  that  the  shares  purchased  of  the  execu- 
tors of  Andrew  Bell  were  assigned  subject  to  the  agree- 


176  CASES  IN  CHANCERY. 

Gifford  v.  N.  J.  Railroad  Co. 

merit.  Although  these  conditions  were  questioned  by  the 
complainant  at  the  hearing,  yet  his  long  acquiescence 
must  be  considered  as  equivalent  to  a  consent  on  his  part. 
Whatever  ground  of  equity  an  individual  stockholder 
may  have  had  at  the  time  of  the  agreement,  a  counter 
equity  has  arisen  from  lapse  of  time  and  acquiescence.  A 
much  shorter  period  of  acquiscence  has  been  held  to  suffice. 
Graham  v.  The  BirTtenhead  Co.,  2  Moon.  <&  Gor.  It. 
146. 

This  power  of  the  Bridge  Company  to  make  such  an 
arrangement  with  the  New  Jersey  Railroad  Company,  al- 
though originally  beyond  the  scope  of  their  corporate 
powers,  became,  with  the  consent  of  the  legislature  and 
the  company,  a  new  subject  matter  of  the  institution,  with 
all  necessary  powers  to  carry  into  effect,  enforce,  and'  secure 
the  provisions  of  their  agreement  with  the  New  Jersey  Rail- 
road Company. 

Is  not  the  agreement  of  the  Bridge  Company,  to  permit 
the  New  Jersey  Railroad  Company  to  build  the  bridge  in 
question,  a  modification  of  the  original  agreement,  be- 
come necessary  from  the  increasing  business  of  the  Rail- 
road Company,  and  the  convenience  of  the  public  in 
avoiding  the  delay  from  the  interruption  of  the  use  of 
steam  power,  an  arrangement  carrying  out  the  provisions 
of  the  original  agreement  with  greater  effect  and  precision, 
and  within  the  scope  of  the  additional  powers  of  the 
Bridge  Company  ?  The  same  amount  of  transportation 
will  be  divided  between  the  two  bridges,  instead  of  going 
over  one.  The  object  of  the  exclusive  right  to  build 
bridges,  granted  by  the  charter  of  the  Bridge  Company, 
was  to  prevent  the  construction  of  bridges  interfering  with 
the  franchise  of  taking  tolls.  The  contemplated  arrange- 
ment will  not  affect  the  franchise.  It  is  said  that  foot 
passengers  will  go  over  the  new  bridge,  and  thus  evade 
the  tolls.  The  same  objection  may  be  made  to  the 
present  railroad  bridge.  Such  a  privilege  is,  however,  no 
part  of  the  agreement  of  the  Bridge  Company,  and  any 


MAY  TERM,  1854.  ITT 


Gifford  v.  N.  J.  Railroad  Co. 


serious  interference  in  that  respect  tending  to  impair  the 
rights  of  a  stockholder  might  be  made  a  distinct  ground 
of  relief.  In  this  view  of  the  case,  the  consent  of  a  ma- 
jority of  the  stockholders  of  the  Bridge  Company  is  bind- 
ing on  the  minority. 

It  was  objected,  on  the  part  of  the  complainant,  that 
the  supplement  to  the  Newark  and  Bloomfield  Railroad 
Company  was  unconstitutional,  inasmuch  as  it  contravenes 
the  article  of  the  constitution  of  this  state  which  declares 
that  every  law  shall  embrace  but  one  object,  and  that  shall 
be  expressed  in  the  title.  The  design  of  this  provision  is 
declared  to  be  to  prevent  improper  influences  which  may 
result  from  intermixing  in  one  and  the  same  act  such 
things  as  have  no  proper  relation  to  each  other.  The  ob- 
jects in  that  statute,  however,  are  parts  of  the  same  enter- 
prise, and  cannot  be  said  to  have  any  improper  relation  to 
each  other. 

It  is  also  urged,  that  the  New  Jersey  Railroad  Com- 
pany have  no  right  to  build  this  bridge  under  the  Bloom- 
field  charter,  as  the  time  for  constructing  this  road  has 
expired,  according  to  the  terms  of  the  original  act,  and 
the  supplement  extending  the  time  is,  through  mistake  or 
oversight,  defective  in  a  significant  word,  and  no  effect 
can  be  given  to  it.  If  this  be  so,  it  does  not  affect  the 
consent  of  the  Bridge  Company,  which  was  obtained 
within  the  limited  time. 

But  the  objection,  that  the  New  Jersey  Railroad  Com- 
pany has  no  right  to  build  this  bridge  under  this  act  and 
other  acts  alleged  to  be  inoperative  or  unconstitutional, 
cannot  be  considered,  in  a  proceeding  of  this  kind,  any 
usurpation  in  this  respect,  is  a  proper  case  for  the  attorney 
general  in  an  information  filed  on  behalf  of  the  state. 

CITED  in  State  v.  Town  of  Union,  4  Vr.  853  ;  Black  v.  Del.  db  Rar.  Can. 
Co.,  7  C.  E.  Or.  Ifl9 


178  CASES  IN  CHANCEKY. 

Clapp  r.  Ely. 


WASHINGTON  CLAPP  and  others  vs.  HENRY  G.  ELY  and 

others. 


Benjamin  Parkhurst  was  a  large  trader,  doing  business  in  the  city  of  Newark. 
In  the  course  of  his  trade,  he  purchased  goods  of  the  defendants,  who  were 
merchants  in  the  city  of  New  York.  It  appeared,  from  the  answer,  that 
Parkhurst  was  indebted  to  them  in  the  sum  of  one  thousand  eight  hundred 
and  fifty-five  dollars  and  twenty-three  cents,  for  goods  sold,  &c.,  and  in  the 
further  sum  of  twelve  hundred  and  seven  dollars  and  seventy-two  cents, 
for  money  lent  and  advanced.  Parkhurst  applied  to  one  of  the  defendants 
for  further  advances  of  money,  and  in  order  to  secure  them  for  such  ad- 
vances and  credit  as  defendants  might  give,  as  well  as  the  then  existing 
indebtedness,  it  was  agreed  that  Parkhurst  should  confess  a  judgment  for 
ten  thousand  dollars  to  the  defendant,  in  consideration  of  his  then  indebt- 
edness of  three  thousand  and  sixty-two  dollars  and  ninety-five  cents,  and 
that  the  defendants  should  advance  to  him  money  and  goods,  from  time  to 
time,  as  he  should  desire  the  same,  to  the  amount  of  the  difference  between 
the  sum  last  named  and  the  sum  for  which  the  judgment  was  to  be  con- 
fessed. To  carry  out  this  arrangement,  the  defendants  gave  to  Parkhurst 
their  note  for  six  thousand  nine  hundred  and  forty-seven  dollars  and  six 
cents,  as  a  security  to  him  for  their  making  the  advances,  and  for  giving 
credit  as  agreed  between  them,  with  the  understanding,  that  as  advances 
were  made,  corresponding  endorsements  were  to  be  made  on  the  note. 
That  under  this  arrangement  the  judgment  was  confessed,  and  the  defend- 
ant advanced  Parkhurst  in  cash  five  thousand  nine  hundred  and  sixty-five 
dollars  and  seventy-two  cents,  and  in  goods  two  hundred  and  thirteen  dol- 
lars and  seventy-five  cents,  making,  with  the  original  indebtedness,  the 
sum  of  nine  thousand  two  hundred  and  forty-two  dollars  and  forty-two 
cents. 

Held,  that  there  was  no  reason  to  doubt,  from  anything  that  appeared  on 
the  face  of  the  answer,  but  that  the  defendants  took  their  judgment  in 
good  faith  to  secure  a  debt  honestly  due  them  and  to  protect  them  in  such 
further  advances  as  they  might  make  to  their  debtor. 

It  did  not  appear  that  there  was  any  affidavit  in  the  case,  and  it  was  insisted 
that  a  judgment  cannot  be  confessed  for  future  advances,  because  the 
plaintiff  cannqt  swear  "that  the  debt  is  justly  and  honestly  due  and  owing, 
and  that  the  court  should  not  allow  the  defendants  to  enforce  their  judg- 
ment, as  it  was  in  contravention  of  the  statute.  But  it  was  held  that  the 
only  ground  of  jurisdiction  in  this  court  to  interfere  with  the  judgment 
would  be  that  it  was  fraudulent. 

They  could  not  declare  the  judgment  void  as  against  creditors,  simply  because 
the  judge  or  court  had  suffered  it  to  be  entered  up  in  violation  of  the  statute. 

It  is  the  conscience  of  the  party  which  this  court  is  to  test,  and  not  the  legali- 
ty of  the  judgment,  or  to  correct  the  error  of  a  court  of  law. 


MAY  TEEM,  1854.  179 

Clapp  v.  Ely. 

This  was  a  motion  to  dissolve  an  injunction.  The  case 
is  fully  stated  in  the  opinion  of  the  Chancellor. 

T.  Runyon  and  J.  P.  Bradley,  for  motion. 

F.  T.  Frelinghuysen  and  TF.  Pennington  against  motion. 

THE  CHANCELLOR.  This  is  the  ordinary  case  of  a  bill 
filed  by  a  judgment  creditor  impeaching  a  prior  judgment 
and  execution  on  the  ground  of  fraud.  Benjamin  Park- 
hurst,  the  common  judgment  debtor,  confessed  a  judg- 
ment to  the  defendants,  Ely,  Clapp,  and  Bowen,  for  the 
gum  of  ten  thousand  dollars.  The  complainants  allege 
that  this  judgment  was  fraudulently  confessed  to  defraud 
tthe  creditors  of  Parkhurst,  and  to  cover  and  protect  his 
property  from  his  creditors.  Several  specific  charges  are 
made  as  to  the  particulars  of  the  fraudulent  design,  and 
manner  of  effecting  it. 

The  first  charge  is,  that  at  the  time  the  judgment  was 
confessed,  the  debt  due  from  Parkhurst  to  these  defend- 
ants did  not  exceed  the  sum  of  nineteen  hundred  dollars, 
and  that  the  judgment  was  confessed  to  defeat  and  get  an 
undue  advantage  of  the  other  creditors  of  Parkhurst. 

Second.  That  the  defendants  pretend  that,  at  the  time 
of  the  confession  of  the  judgment,  they  made  and  deliv- 
ered to  Benjamin  Parkhurst  their  promissory  note  for 
the  sum  of  eight  thousand  dollars  and  upwards,  payable 
to  Parkhurst  on  demand ;  and  the  complainants  charge, 
that  if  such  note  was  made,  it  was  a  sham,  a  mere  matter 
of  form,  and  a  fraudulent  device  for  the  purpose  of  cre- 
ating a  more  colorable  debt  or  demand  for  money  lent, 
upon  which  the  affidavit  required  by  law  could  be  made ; 
that  it  was  understood  at  the  time,  between  the  complain- 
ants and  Parkhurst,  that  the  note  was  to  be  regarded  as 
a  mere  matter  of  form,  to  enable  the  complainants,  or 
one  of  them,  to  make  the  required  affidavit ;  that  it  was 
to  have  no  validity  ;  that  it  should  not  go  into  the  hands 


180  CASES  IN  CHANCERY. 

Clapp  v.  Ely. 

of  Parkhurst,  but  be  left  with  the  complainants'  attorney 
until  the  judgment  should  be  confessed,  and  then  to  be 
given  up  to  these  defendants,  and  that  the  note  was,  in  pur- 
suance of  such  agreement,  delivered  up  to  them. 

Third.  It  is  charged,  that  the  defendants  allege  that  the 
judgment  was  confessed  to  secure  the  debt  of  nineteen 
hundred  dollars  actually  due,  and  all  future  advances  the 
defendants  might  make  Parkhurst  to  enable  him  to  carry 
on  his  business.  The  bill  charges,  that  by  promising  to 
make  such  advances,  the  defendants  induced  Parkhurst 
to  confess  the  judgment ;  that  the  defendants  have  vio- 
lated their  engagements  in  this  respect,  and  have  refused 
to  make  any  advances,  in  consequence  of  which  Park- 
hurst became  involved  and  failed  in  business,  and  that 
the  defendants  are  now  fraudulently  enforcing  their  judg- 
ment by  execution. 

Fourth.  It  is  charged,  that  the  defendants  further  allege 
that  they  have  advanced  a  large  sum  of  money  to  Carter, 
Quinan,  and  De  Forrest.  The  bill  charges,  that  if  any 
such  advances  were  made,  they  were  made  long  before 
the  indebtedness,  or  any  part  of  the  same,  had  become 
due  and  payable,  and  when  the  whole  debt,  in  different 
amounts,  had  long  periods  to  run  to  maturity,  and  that 
the  defendants  are  now  making  their  judgment  an  instru- 
ment to  compel  the  immediate  payment  of  those  ad- 
vances, in  violation  of  their  agreement  with  Parkhurst,  and 
to  his  ruin. 

The  bill  prays,  that  the  judgment  confessed  by  Park- 
hurst to  the  defendants  may  be  decreed  to  be  fraudulent 
and  void  in  whole,  or  if  not  in  whole,  for  so  much  thereof 
as  exceeds  the  amount  actually  and  justly  due  and  owing 
at  the  time  the  judgment  was  confessed  ;  and  that  if  they 
should  be  held  to  be  entitled  under  their  judgment  to  any 
sum  of  money  whatever,  that  the  amount  thereof  may  be 
ascertained  by  the  decree  of  this  court,  and  the  defend- 
ants be  decreed  to  accept  the  same  from  the  complainants  ; 
and  an  injunction  is  asked  to  prevent  the  defendants  from 
further  prosecuting  their  judgment  and  execution. 


MAY  TERM,  1854.  181 

Clapp  v.  Ely. 

On  filing  the  bill,  the  injunction  was  ordered.  The  de- 
fendants have  answered,  and  now  move  a  dissolution  of 
the  injunction.  The  general  charge  of  fraud  as  to  the 
judgment,  having  been  conceived  or  procured,  for  the 
fraudulent  purpose  of  covering  up  and  concealing  the 
debtor's  property,  and  to  protect  it  against  his  creditors, 
is  fairly  and  fully  met,  and  without  any  reservation  denied 
by  the  answer.  The  particulars  stated  in  the  bill  consti- 
tuting the  fraud,  and  impeaching  the  bona  fides  of  the 
transactions,  are  all  met  by  the  answer,  and  are  responded 
to  with  apparent  frankness.  Whether  the  equity  of  the 
bill  is  denied,  and  what  disposition  of  the  case  should  be 
made  upon  this  motion,  must  depend  on  the  view  the 
court  takes  of  the  transaction,  as  it  is  confessed  by  the 
defendants. 

Benjamin  Parkhurst  was  a  large  trader,  doing  business 
in  the  city  of  Newark.  In  the  course  of  his  trade,  he  pur- 
chased goods,  of  the  defendants,  who  were  merchants  in 
the  city  of  New  York.  The  answer  gives  the  following 
account  of  Parkhurst's  indebtedness  to  the  defendants  at 
the  time  the  judgment  was  confessed,  and  the  negotia- 
tions about,  and  the  particulars  respecting  the  confession 
of  the  judgment.  That  Parkhurst  was  indebted  to  them 
in  the  sum  of  one  thousand  eight  hundred  and  fifty- 
five  dollars  and  twenty-three  cents,  for  goods,  wares,  and 
merchandise  sold  him  in  the  usual  course  of  trade,  and  in 
the  further  sum  of  twelve  hundred  and  seven  dollars  and 
seventy-two  cents,  for  money  lent  and  advanced,  which 
indebtedness  was  prior  to  any  negotiations  about  the 
judgment ;  that  a  few  days  before  the  judgment  was  con- 
fessed, Parkhurst  applied  to  DeWitt  C.  Clapp,  one  of  the 
defendants,  and  said  he  would  be  glad  to  make  an  ar- 
rangement with  the  defendants,  by  which  he  might  obtain 
further  credit  for  goods,  and  further  advances  for  money 
from  them,  which  advances  of  money,  he  said,  he  wanted 
to  meet  some  notes  of  his,  which  would  shortly  come  to 
maturity  ;  and  he  proposed,  as  a  security  for  his  then 

VOL.  n  <j 


182  CASES  IN  CHANCEKT. 

Clapp  i>.  Ely. 

existing  indebtedness,  and  to  secure  such  further  credit  as 
the  defendants  would  give  him  for  goods,  and  such  ad- 
vances in  money  as  they  might  make  him  for  his  accom- 
modation, to  secure  them  by  a  confessed  judgment ;  that 
after  considerable  negotiation,  it  was  agreed  that  Park- 
hurst  should  confess  a  judgment  for  ten  thousand  dollars 
te  the  defendants,  in  consideration  of  his  then  indebted- 
ness of  three  thousand  and  sixty-two  dollars  and  ninety- 
iive  cents,  and  that  the  defendants  should  advance  to  him 
money  and  goods  from  time  to  time,  as  he  should  desire 
the  same,  to  the  amount  of  the  difference  between  the 
sum  last  named  and  the  sum  for  which  the  judgment  was 
to  be  confessed  ;  that  to  carry  out  this  arrangement,  the 
defendants  gave  to  Parkhurst  their  note  for  six  thousand 
nine  hundred  and  fifty-seven  dollars  and  six  cents,  as  a 
security  to  him  for  their  making  the  advances,  and  for 
giving  credit  for  goods,  as  agreed  between  them,  with  the 
understanding,  that  as  advances  were  made,  and  the  goods 
delivered,  corresponding  endorsements  should  be  made 
on  the  note ;  that  under  this  arrangement  the  judgment 
was  confessed,  and  the  defendants  advanced  Parkhurst  in 
cash  five  thousand  nine  hundred  and  sixty-five  dollars  and 
seventy-two  cents,  and  in  goods  two  hundred  and  thirteen 
dollars  and  seventy-five  cents,  making,  with  the  original 
indebtedness,  the  sum  of  $9242.42. 

On  behalf  of  the  complainants,  it  is  insisted — 
First.  That  the  character  of  the  transaction,  as  revealed 
by  the  answer,  justifies  a  well  founded  belief  that  the 
judgment  was  conceived  in  fraud,  and  was  designed  for 
some  fraudulent  purpose,  and  therefore  the  court  should 
retain  the  injunction  and  afford  an  opportunity  for  further 
investigation. 

Second.  That  the  judgment  was  confessed  in  contra- 
vention of  the  statute,  and  it  is  therefore  void  in  toto,  or  if 
not  in  whole,  then  as  to  all  except  the  sum  of  $3062.95, 
the  amount  of  indebtedness  actually  due  from  Parkhurst 
at  the  time  the  judgment  was  entered. 


MAY  TERM,  1854.  183 

Clapp  v.  Ely. 

I  can  see  no  reason  to  doubt,  from  anything  that  ap- 
pears on  the  face  of  the  answer,  but  that  the  defendants 
took  their  judgment  in  good  faith  to  secure  a  debt  hon- 
estly due  them,  and  to  protect  them  in  such  further  ad- 
vances they  might  make  to  their  debtor.  It  is  not  alleged 
in  the  bill  that  Parkhurst  was  in  failing  circumstances  at 
the  time ;  and  what  inducement  the  defendants  could 
have  had  to  enter  into  a  scheme  with  Parkhurst  to  com- 
mit a  fraud  upon  his  creditors,  is  left  to  conjecture.  The 
charges  in  the  bill,  as  to  a  design  of  the  defendants  to 
defraud  Parkhurst,  by  breaking  their  agreement  with  him 
as  to  make  advances,  and  in  enforcing  the  judgment 
and  execution,  so  as  to  embarrass  and  ruin  of  him,  are  de- 
nied by  the  answer ;  and  there  is,  I  think,  enough  in  the 
whole  case  to  corroborate  the  answer  in  this  respect,  and 
to  justify  me  in  giving  to  it  the  most  implicit  confidence 
in  this  particular.  The  fact,  that  in  less  then  ten  days  after 
their  judgment,  the  defendants  were  obliged  to  advance 
the  sum  of  fifty-eight  hundred  dollars  and  upwards,  in 
order  to  protect  the  very  goods  upon  which  they  had  a 
levy,  for  their  security,  and  that  in  less  than  ten  days  after 
that  Parkhurst  confessed  the  judgments  to  the  complain- 
ants, show  that  Parkliurst's  case  was  beyond  any  relief 
the  defendants  had  engaged  to  afford  him. 

Again.  AVas  the  judgment  confessed  in  contravention 
of  the  statute  ?  and  if  it  was,  is  that'  any  ground  for  the 
interference  of  this  court  in  aid  of  the  complainants  ? 

Here  is  a  judgment  of  a  court  of  law,  whether  con- 
fessed before  a  judge  at  chambers  or  in  open  court  does 
not  appear ;  but  that  it  is  a  judgment  of  a  competent  tri- 
bunal, is  not  denied.  The  statute  declares,  "  that  no  judg- 
ment shall  be  entered  in  any  court  of  record  of  this  state 
on  a  warrant  of  attorney  to  confess  judgment,  or  by  the 
defendant  appearing  in  person  in  open  court  and  confess- 
ing the  same,  unless  the  plaintiff,  or  his  attorney,  shall 
produce,  at  the  time  of  confessing  such  judgment,  to  the 
court,  judge,  or  justice,  before  whom  the  judgment  shall 


184:  CASES  IN  CHANCERY. 

Clapp.  v.  Ely. 

be  confessed,  an  affidavit  of  the  plaintiff,  his  attorney  or 
agent,  of  the  true  consideration  of  the  bill,  bond,  deed, 
note,  or  other  instrument  of  writing  or  demand  for  which 
the  said  judgment  shall  be  confessed ;  which  affidavit 
shall  further  set  forth,  that  the  debt  or  demand  for  which 
the  judgment  is  confessed  is  justly  and  honestly  due  and 
owing  to  the  person  or  persons  to  whom  the  judgment  is 
confessed,  and  that  the  said  judgment  is  not  confessed  to 
answer  any  fraudulent  intent  or  purpose,  or  to  protect  the 
property  of  the  defendant  from  his  other  creditors." 

It  is  said  that  the  defendants  in  this  case  could  not 
have  made  affidavit  required  by  the  statute ;  that  a  judg- 
ment cannot  be  confessed  for  future  advances,  because 
the  plaintiff  cannot  swear  "that  the  debt  is  justly  and 
honestly  due  and  owing,"  and  that,  therefore,  this  court 
ought  not  to  allow  the  defendants  to  enforce  their  judg- 
ment to  the  prejudice  of  the  complainants.  It  does  not 
appear  that  there  was  any  affidavit  in  this  case.  Suppose 
there  was  not,  the  judgment  is  neither  void  as  to  the  par- 
ties to  it,  nor  void  or  fraudulent  as  to  third  persons.  It 
is  a  valid  judgment,  and  must  be  respected  as  such  by  all 
courts,  until  it  is  set  aside  by  a  competent  tribunal.  This 
court  has  no  right  to  impeach  its  validity  on  such  a 
ground.  The  only  ground  of  jurisdiction  in  this  court  to 
interfere  with  the  judgment,  is  that  it  is  fraudulent.  To 
detect  the  fraud,  the  court  may  go  behind  the  proceedings, 
and  may  test  the  consciences  of  the  parties  to  it,  and 
declare  it  fraudulent,  if  the  debt  for  which  it  is  confessed 
is  not  an  honest  one,  or  if  it  is  confessed  for  any  fraudu- 
lent intent  or  purpose.  But  this  court  cannot  declare  the 
judgment  void  as  against  creditors,  simply  because  the 
judge  or  court  has  suffered  it  to  be  entered  up  in  viola- 
tion of  the  statute.  If  the  court,  or  judge,  has  in  this 
case  allowed  a  judgment  to  be  entered  up,  for  the  pur- 
pose of  securing  future  advances  to  be  made  by  the  plain- 
tiffs in  the  judgment  to  the  defendant,  this  court  has  no 
right  to  say  that  the  court  of  law  erred  in  judgment,  and 


MAY  TEEM,  1854.  185 

Clapp  v.  Ely. 

that  the  judgment  is  void  and  fraudulent  as  against  other 
creditors.  It  is  the  conscience  of  the  party  which  this 
court  is  to  test,  and  not  the  legality  of  the  judgment,  or 
t~  correct  the  error  of  the  court  of  law.  If  it  is  said,  that 
the  judge  or  court  had  before  them  an  affidavit,  which  in 
terms  complied  with  the  statute,  but  which  the  discovery 
n  }w  made  shows  was  untrue,  and  that  this  court  can  now 
do,  for  the  purposes  of  this  suit,  what  the  court  of  law 
could  not  do,  look  behind  the  affidavit,  my  answer  is,  it 
does  not  appear  but  that  the  affidavit,  if  there  was  any, 
disclosed  the'  very  facts  contained  in  this  answer,  and  that 
the  court  did  adjudicate  that  a  judgment  might  be  con- 
fessed for  just  such  a  demand  as  the  plaintiff  in  the  judg- 
ment had  against  the  judgment  debtor.  If  the  judgment 
was  not  confessed  for  any  fraudulent  purpose,  if  it  was 
confessed  bona  fide,  this  court  ought  not  to  interfere  with 
the  plaintiffs  in  the  judgment  collecting  what  is  due  upon 
it.  I  think  the  defendants  are  entitled  to  the  benefit  of 
their  judgment,  and  that  it  must  stand  for  the  full  amount 
of  the  advances  they  made  upon  it.  To  this  extent  the 
judgment  must  be  dissolved  ;  but  as  the  proofs  may  show 
that  the  amount  claimed  by  the  defendants  is  not  all  due 
to  them,  they  must  give  security  to  refund  any  part  of  the 
amount  realized  which  may  be  found  not  to  be  due. 

Let  an  order  be  made  directing  the  sheriff  to  sell,  and 
to  pay  over  to  the  defendants  the  sum  of  nine  thousand 
two  hundred  and  forty-two  dollars  and  forty-two  cents, 
with  interest  and  costs,  taking  from  the  defendants  suffi- 
cient security  to  refund  any  part  of  the  same,  if  upon  the 
final  determination  of  the  case,  the  whole  of  that  amount 
may  be  ascertained  not  to  be  due  to  them. 


CASES 

ADJUDGED  OT 

THE   COURT  OP  CHANCERY 

OF  THE  STATE  OF  NEW  JERSEY, 
OCTOBER  TERM,  1854. 

In  the  matter  of  DANIEL  YANATTKEN,  an  alleged  lunatic. 

A  person  on  trial  under  a  commission  of  alleged  lunacy  has  a  right  to  be 
present  at  the  trial  to  make  his  defence,  by  himself  or  counsel,  and  to  ex- 
amine witnesses.  In  case  of  confirmed  and  dangerous  madness,  notice  may 
be  dispensed  with,  but  then  only  by  the  express  order  of  the  court. 

No  specific  time  is  fixed  by  the  practice  of  the  court.  It  must  be  a  reasona- 
ble notice. 

A  notice  given  on  Saturday,  of  the  execution  of  a  commission  on  Tuesday 
following,  is  insufficient. 

But  when  the  alleged  lunatic  appears  upon  such  notice  by  counsel,  and 
makes  no  objection,  but  consents  to  an  adjournment  for  a  future  day,  the 
insufficiency  of  notice  is  thereby  waived. 

The  court,  however,  will  relieve  the  petitioner,  if  through  inadvertence  or 
mistake  he  has  been  prejudiced,  but  not  unless  such  mistake  or  prejudice 
clearly  appears.  The  oath  of  his  counsel,  that  he  was  prejudiced,  without 
stating  in  what  particular,  is  not  enough. 

Exceptions  stated  to  the  general  rule,  that  the  opinion  of  a  witness  is  not 
competent  evidence  to  go  to  the  jury. 

The  charge  of  the  commissioner  to  the  jury  in  this  case  given,  and  ruled  to 
be  correct. 

Whether  the  alleged  lunatic  may  traverse  the  inquisition,  is  a  matter  ad- 
dressed to  the  discretion  of  the  court,  and  if  upon  a  review  of  the  evidence 
there  exists  a  reasonable  doubt  as  to  the  correctness  of  the  finding,  the 
traverse  should  be  allowed. 


OCTOBER  TERM,  1854.  1ST 

Vanauken,  an  alleged  lunatic. 

A  mere  failure  of  memory  and  decay  and  feebleness  of  the  intellectual  facul- 
ties are  not  evidences  of  that  unsoundness  of  mind  which  will  justify  a  jury 
in  finding  a  man  a  lunatic.  To  warrant  this,  they  must  be  such  as  to  im- 
port a  total  deprivation  or  suspension  of  the  ordinary  powers  of  the  mind. 

The  question,  what  constitutes  unsoundness  of  mind  considered. 

A  petition  for  a  traverse  should  not  be  sworn  to  by  the  lunatic.  But  the 
court  should  be  satisfied  that  it  is  in  truth  the  petition  of  the  alleged 
lunatic. 

Ordered,  in  this  case,  that  the  petitioner  be  produced  before  the  Chancellor 
for  examination,  to  ascertain  whether  he  understood  the  character  of  the 
petition,  and  desired  to  traverse. 


On  the  20th  of  April,  1854,  a  commission,  in  the  nature 
of  a  writ  de  lunatico  inquirendo,  issued  out  of  this  court, 
directed  to  James  Lain,  Moses  Dunning,  and  David 
Thompson,  esquires,  directing  them  to  inquire  into  the 
alleged  lunacy  of  Daniel  Vanauken.  On  the  13th  of  May, 
the  commission  was  executed,  and  the  jury  found  that  the 
said  Daniel  Vanauken  was,  at  the  time  of  taken  the  in- 
quisition, a  lunatic  and  of  unsound  mind,  and  that  he 
had  been  in  the  same  state  of  lunacy  for  the  space  of 
three  years  then  last  past.  Twenty-one  jurors  were  sworn. 
Twenty  signed  the  return. 

On  the  9th  of  June,  the  alleged  lunatic  filed  the  follow- 
ing petition : 

In  Chancery  of  New  Jersey. 

In  the  matter  of  Daniel  Vanauken,  a  person  found  to  be 
a  lunatic  and  of  unsound  mind. 

To  the  Honorable  Benjamin  "Williamson,  Chancellor  of 
Kew  Jersey. 

The  humble  petition  of  the  said  Daniel  Vanauken 
showeth : 

That  by  an  order  made  in  this  matter,  on  the  twentieth 
day  of  April  last,  it  was  ordered  that  a  commission  in  the 
nature  of  a  writ  de  lunatico  inquirendo  should  issue  to  in- 
quire of  the  lunacy  of  your  petitioner,  the  said  Daniel  Van- 
auken. 

That  by  the  inquisition  taken  on  the  execution  of  the 
said  commission,  on  the  ninth,  twelfth,  and  thirteenth 


188  CASES  IN  CHANCEKY. 

Vanauken,  an  alleged  lunatic. 

days  of  May,  instant,  it  was  found  that  your  peti<  oner 
was  a  lunatic  and  of  unsound  mind,  and  that  he  had  been 
in  that  condition  for  the  space  of  three  years  then  next  pre- 
ceeding  and  upwards. 

That  your  petitioner  is  advised  that  the  finding  of  the 
jury  upon  such  inquisition  was  against  evidence  and  con- 
trary to  law,  and  your  petitioner  is  greatly  aggrieved  and 
prejudiced  by  the  issuing  of  the  said  commission  and.  the 
return  of  the  said  inquisition,  and  that  your  petition  2r  is 
of  sound  mind,  and  perfectly  competent  and  sufficient  for 
the  government  of  himself  and  his  property. 

And  your  petitioner  would  state  the  following  excep- 
tions to  the  said  commission,  and  the  proceedings  the)  eon, 
which  exceptions  he  is  advised  are  good  and  sufficient  in 
law. 

First.  Because  no  sufficient  notice  of  the  time  and  ]  »lace 
of  executing  the  said  commission  was  given  to  your  peti- 
tioner, the  notice  having  been  served  on  Friday  evening, 
the  fifth  of  May,  of  the  execution  of  the  commissk  n  on 
Tuesday,  the  ninth  of  May,  in  the  morning,  being  only 
two  entire  days,  exclusive  of  Sunday,  by  means  whereof 
your  petitioner,  residing  at  a  considerable  distance  from 
counsel,  had  not  sufficient  time  and  opportunity  to  prepare 
his  defence. 

Second.  Because  the  commissioners  allowed  as  evidence, 
on  the  execution  of  said  commission,  against  the  objection 
of  your  petitioner's  counsel,  the  opinions  of  witnesses,  who 
were  not  medical  men  or  experts  in  questions  of  lunacy, 
as  to  the  lunacy  of  your  petitioner,  and  his  competency 
to  transact  business,  without  confining  the  testimony  of 
said  witnesses  to  facts. 

Third.  Because  the  commissioners  charged  the  jury,  that 
enfeeblement  of  the  memory  wras  included  in  the  term  lu- 
nacy, and  if  made  out  was  sufficient  to  support  a  finding  of 
lunacy. 

Fourth.  Because  the  said  commissioners  charged  the 
jury,  that  the  term  lunacy  included  dementia, .  and  that  if 


OCTOBEK  TEEM,  1854.  189 

Vanauken,  an  alleged  lunatic. 

the  first  degree  of  dementia,  to  wit,  that  arising  from  loss 
of  memory,  was  made  out,  it  was  sufficient  to  make  out 
the  case  without  evidence  of  a  want  of  proper  manage- 
ment of  jour  petitioner's  person  and  property. 

Fifth.  Because  the  evidence  taken  on  the  execution  of 
the  said  commission  proved  nothing  more  than  a  partial 
failure  of  memory,  mere  forgetfulness,  and  did  not  prove 
a  failure  of  judgment  or  of  reasoning  faculties  of  your 
petitioner,  nor  any  improper  management  of  your  peti- 
tioner's person  or  property,  and  the  finding  of  the  jury 
was  contrary  to  law  and  evidence,  unnecessarily  affecting 
the  rights  and  liberty  of  your  petitioner. 

Your  petitioner  therefore  prays  your  honor,  that  he  may 
be  at  liberty  to  traverse  the  said  inquisition,  and  that  such 
traverse  may  be  tried  in  the  Supreme  Court  of  this  state, 
and  in  the  county  of  Sussex,  or  that  a  new  commission 
may  issue  in  the  premises,  or  that  your  honor  will  be 
pleased  to  make  such  further  or  other  order  herein  as  to 
your  honor  may  seem  meet.  And  your  petitioner  will  ever 
pray,  &c. 

Dated  May  31st,  1854. 

DANIEL  YANAUKEN. 

The  case  was  elaborately  argued  by 
M.  Ryereon^  for  petitioner. 
James  Wifeon,  contra. 

THE  CHANCELLOR.  The  petitioner,  who  is  the  alleged 
lunatic,  asks  that  the  inquisition  taken  may  be  set  aside, 
and  a  new  commission  issued  ;  or  in  case  this  should  be 
refused,  that  he  may  be  permitted  to  traverse  the  inquisi- 
tion. 

There  are  several  reasons  assigned  in  the  petition  for 
setting  aside  the  inquisition.  I  will  examine  them  briefly 
in  their  order. 

First.  Because  there  was  not  sufficient  notice  given  to 


190  CASES  IN  CHANCERY. 

Vanauken,  an  alleged  lunatic. 

the  petitioner  of  the  time  and  place  of  executing  the  com- 
mission. 

The  alleged  lunatic  has  a  right  to  be  present  at  the  ex- 
ecution of  the  commission,  to  make  his  defence  by  him- 
self or  counsel,  and  to  examine  witnesses.  The  effect  of  a 
finding  against  him  is  to  deprive  him  of  the  control  of  his 
property  and  of  his  personal  liberty.  Such  consequences 
cannot  follow,  except  upon  the  verdict  of  a  jury ;  and  no 
such  verdict  should  be  permitted  to  pass  against  any  man 
without  affording  him  an  opportunity  of  defending  him- 
self; except  in  extreme  cases,  when  such  notice  would  be 
nugatory.  In  cases  of  confirmed  and  dangerous  madness 
it  may  be  dispensed  with,  but  then  only  by  the  express 
order  of  the  court.  IZusseVs  case,  1  Barb.  C.  R.  39.  In 
the  case  of  Whitenack,  2  Green? s  C.  R.  252,  it  was  decided 
that  reasonable  notice  of  the  time  and  place  of  taking  of 
an  inquisition  of  lunacy  should  be  given  to  the  alleged 
lunatic ;  and  that  the  want  or  defect  of  notice  is  not  aided 
by  his  appearing  before  the  jury,  and  attempting  a  de- 
fence. The  specific  time  to  which  the  party  is  entitled  to 
notice  is  not  fixed  by  any  rule  or  by  the  practice  of  the 
court.  It  must  be  a  reasonable  notice,  such  as  will  give  to 
the  party  a  fair  opportunity  of  preparing  his  defence.  If 
the  notice  in  the  particular  case  has  been  so  short  as  ac- 
tually to  deprive  the  petitioner  of  this  opportunity,  he 
ought  not  to  be  concluded  by  a  finding  against  him. 

In  this  case  the  venire  was  issued  on  Friday,  the  fifth  of 
May,  returnable  on  the  following  Tuesday.  Notice  was 
served  on  the  petitioner  the  day  after  the  venire  was  issued. 
This  notice  was  entirely  insufficient,  and  would  be  deemed 
so  even  without  an  affidavit  showing  that  the  party  had 
been  prejudiced  by  it.  But  on  the  ninth  of  May,  the  pe- 
titioner appeared  by  counsel.  No  objection  was  made  to 
the  notice,  and,  by  mutual  consent,  there  was  an  adjourn- 
ment to  the  17th  of  May.  The  petitioner,  by  his  counsel, 
having  consented  to  the  adjournment  without  making 
any  objection  to  the  notice,  thus  fixed  his  own  time,  and 


OCTOBER   TERM,   1854 


Vanauken,  an  alleged  lunatic. 


ought  not  now  to  be  psrmitted  to  avail  himself  of  the  in- 
sufficiency of  the  notice,  unless  the  court  can  see  that, 
through  some  inadvertance  or  mistake  on  his  part,  the 
petitioner  has,  by  the  limited  time  afforded  hkn  for  pre- 
paring his  defence,  been  prejudiced  at  the  hearing.  Mr. 
Sheppard,  his  counsel,  swears  that  he  verily  believes  that 
had  the  same  Daniel  Vanauken  had  a  longer  time  to  pre- 
pare his  defence  than  the  two  days  that  was  given  him, 
he  could  have  made  a  more  successful  defence  before  the 
jury ;  and  he  judges  so  from  facts  that  have  come  to  his 
knowledge  since  the  trial,  and  from  information  that  he 
has  received  from  the  said  Daniel  Vanauken,  in  talking 
with  him  since  the  trial.  Now  the  notice  was  served  on 
the  sixth  of  May,  and  the  hearing  commenced  on  the  13th 
of  that  month,  so  that  instead  of  the  petitioner  having 
only  two  days  he  had  six,  exclusive  of  Sunday,  to  pre- 
pare his  defence.  He  had  two  counsel  present  before  the 
jury,  and  all  the  time  they  asked  for  was  granted  them. 
The  objection,  under  the  circumstances,  is  not  well 
taken. 

Another  objection  is  made  as  to  the  manner  in  which 
the  commission  was  executed,  that  the  commissioners, 
against  the  objection  of  counsel,  allowed  as  evidence  the 
opinions  of  witnesses,  who  were  not  medical  men  or  ex- 
perts, as  to  the  lunacy  of  the  patitionsr,  and  as  to  his  com- 
petency to  transact  business. 

The  general  rule  is,  that  the  opinion  of  a  witness  is  not 
evidence  to  go  to  a  jury.  There  are  exceptions  to  the 
rule.  In  matters  of  science  and  trade,  a  person  skilled  in 
the  particular  science  or  trade  may  not  only  speak  as  to 
facts,  but  may  give  his  opinion  in  evidence;  and  even 
further  than  this.  A  medical  man  is  not  only  permitted 
to  give  his  opinion  as  to  the  state  of  a  patient  whom  he 
has  seen,  but  he  will  be  permitted,  after  hearing  a  detail 
from  other  witnesses  of  the  symptoms,  to  give  his  opinion 
of  the  nature  and  character  of  suclf  symptoms.  To  these 
may,  I  think  with  propriety,  be  added  a  further  exception. 


192  CASES  IN  CHANCERY. 

Vanauken,  an  alleged  lunatic. 

that  the  opinion  of  a  witness  is  admissible  where  its  pro- 
priety is  apparent  from  the  nature  of  the  case.  As  in  the 
case  of  insanity,  a  witness  may  state  facts,  may  give  the 
look  of  the  eye,  and  the  actions  of  a  man,  but  unless  he 
is  permitted  to  tell  what  they  indicate,  or,  in  other  words, 
be  permitted  to  express  an  opinion,  he  cannot  convey  to 
the  mind  distinctly  the  condition  of  the  man  that  such 
acts  and  looks  portray.  As  rebutting  testimony,  it  is  cer- 
tainly competent  to  ask  a  witness  whether,  in  his  opinion, 
the  subject  is  not  of  sound  mind  ?  The  weight  or  value  of 
an  opinion  is  a  very  different  thing  from  its  admissibility 
as  evidence.  Unless  the  witness  gives  facts  upon  which 
his  opinion  is  founded,  then  such  opinion  ought  not  to  be 
admitted  as  any  evidence.  I  believe  such  has  been  the 
rule  adopted  by  the  courts  in  New  Jersey.  In  the  case  of 
WJiitencbck  v.  /Stryker  and  Vborhees,  1  G.  C.  JR.  8,  where  a 
will  was  contested  on  account  of  the  incapacity  of  the 
testator,  the  opinions  of  witnesses  were  admitted  as  evi- 
dence. The  Chancellor,  in  laying  down  the  principles  of 
law  to  govern  that  case,  remarks :  "  that  the  opinions  of 
witnesses,  other  than  the  testamentary  witnesses,  as  to  the 
capacity  of  the  testator,  are  to  be  received  as  the  slight- 
est kind  of  evidence,  except  so  far  as  these  opinions  are 
based  on  facts  and  occurrences  which  are  detailed  before 
the  court."  In  the  case  of  Sloan  v.  Jfaxwett  and  others, 
2  G.  C.  R.  563,  Chief  Justice  Ewing,  who,  as  master, 
sitting  with  Justice  Drake,  gave  an  advisory  opinion  to 
the  Chancellor,  says :  "  The  mere  opinions  of  witnesses 
are  entitled  to  little  or  no  regard,  unless  they  are  sup- 
ported by  good  reasons,  founded  on  facts  which  wrarrant 
them,  in  the  opinion  of  the  jury.  If  the  reasons  are  fri- 
volous or  inconclusive,  the  opinions  of  the  witnesses  are. 
worth  nothing." 

In  this  case  the  commissioners  permitted  witnesses  who 
had  been  long  acquainted  with  the  petitioner  to  give  their 
opinions  as  to  the  soundness  of  his  mind,  and  to  detail 
the  facts  and  circumstances  within  their  own  knowledge 


OCTOBER  TERM,  1854.  193 

Vanauken,  an  alleged  lunatic. 

upon  which  such  opinions  were  based.  I  do  not  think 
they  erred  in  admitting  such  evidence. 

A  further  exception  stated  in  the  petition  is,  because 
the  commissioners  charged  the  jury,  that  enfeeblement  of 
the  memory  was  included  in  the  term  lunacy,  and  if  made 
out  was  sufficient  to  support  a  finding  of  lunacy  ;  and 
because  they  also  charged  the  jury,  that  the  term  lunacy 
included  dementia,  and  that  if  the  first  degree  of  demen- 
tia, to  wit,  that  arising  from  loss  of  memory,  was  made 
out,  it  was  sufficient  to  make  out  the  case,  without  evi- 
dence of  a  want  of  proper  management  of  person  and 
property. 

The  exception  would  be  a  good  one,  if  it  were  true  in 
point  of  fact.  The  affidavit  of  Mr.  Thompson,  one  of  the 
commissioners,  is  before  me.  He  states  that  the  charge 
was  reduced  to  writing  by  himself,  and  that,  with  the  ap- 
probation of  the  other  two  commissioners,  he  delivered 
the  same  to  the  jury.  He  says,  "  the  jury  were  referred 
to  the  account  given  in  Dean's  Medical  Jurisprudence  of 
the  symptoms  existing  in  the  different  degrees  of  senile 
dementia,  as  there  arranged,  and  which  had  been  referred 
to  by  the  counsel  of  Daniel  Vanauken,  and  were  told  that 
it  was  not  necessary  that  all  the  characteristics  of  demen- 
tia, mentioned  by  the  author  arising  in  the  four  different 
degrees  of  dementia,  should  concur  at  the  same  time  in  one 
individual,  in  order  to  constitute  dementia.  The  jury  were 
further  charged,  that  the  term  lunacy  included  both 
classes  of  mental  alienation,  mania  and  dementia,  and  that 
if  the  jury  believed,  from  the  evidence,  that  such  unsound- 
ness  of  mind  existed  in  the  case  of  Daniel  Vanauken  as 
rendered  him  incapable  of  managing  his  affairs,  and  that 
this  unsoundness  was  caused  by  dementia,  or  other  mental 
alienation,  they  might  find  him  a  lunatic  and  of  unsound 
mind."  This  charge  violates  no  principle  of  law,  and  the 
exception,  therefore,  is  not  well  taken.  I  can  see  no  just 
cause  for  setting  aside  the  inquisition  on  account  of  any- 
thing that  occurred  in  the  execution  of  the  commission. 

VOL.  n.  K 


194:  CASES  IN  CHANCEKY. 

Vanauken,  an  alleged  lunatic. 

The  petitioner  further  asks,  that  he  may  be  permitted 
to  traverse  'the  inquisition,  and  this  is  the  only  question 
remaining  to  be  disposed  of.  It  is  addressed  to  the  sound 
discretion  of  the  court ;  and,  if,  upon  reviewing  the  case 
as  it  is  before  me,  a  reasonable  doubt  is  raised  as  to  the 
petitioner  being  a  lunatic,  the  traverse  should  be  allowed. 

The  evidence  that  was  taken  before  the  jury  was  not 
reduced  to  writing ;  but  the  affidavits  of  the  witnesses 
who  were  examined  have  been  since  taken,  and  I  presume 
the  case,  as  it  appeared  before  the  jury,  is  fairly  pre- 
sented. 

The  petitioner  is  an  old  man,  nearly  eighty  years  of 
age.  lie  is  the  owner  of  a  large  farm  in  the  county  of 
Sussex,  which  he  has  occupied  and  carried  on  for  many 
years.  This  appears  to  have  been  his  only  occupation  and 
business.  If  he  is  of  unsound  mind,  it  is  the  effect  of  old 
age.  His  mind  has  not  been  shattered  by  any  disease 
which  has  affected  his  body,  or  by  any  shock  proceeding 
from  accident  or  misfortune  of  any  kind.  The  witnesses 
all  speak  of  his  failure  of  memory,  and  deduce  their  opin- 
ions simply  from  this  criterion.  He  seems  to  have  been 
actively  engaged  upon  the  business  of  his  farm  up  to  the 
time  of  taking  the  inquisition.  There  is  evidence  of  his 
transacting  business  with  his  neighbors,  in  which  he  ex- 
hibited ordinary  prudence  and  judgment.  He  has  had 
the  control  of  his  property,  and  been  associating  with  his 
relatives  and  neighbors,  and  yet  there  is  no  evidence  of 
his  disposing  of  any  of  his  property  indiscreetly,  or  of 
entering  into  any  engagements  showing  a  want  of  judg- 
ment. Although  a  number  of  witnesses  express  the  opin- 
ion that  he  is  incapable  of  managing  his  affairs,  yet  no 
one  instance  is  given  by  any  of  them  showing  such  inca- 
pacity. The  reasons  they  give  for  their  opinions  are 
founded  upon  the  mere  fact  of  a  partial  failure  of  mem- 
ory. This  defect  the  old  man  seems  to  be  aware  of  him- 
self. He  has  mind  enough  to  be  sensible  of  this  defect, 
and  to  acknowledge  it.  A  mere  failure  of  memory  and 


OCTOBER  TEEM,  1854.  195 

Vanauken,  an  alleged  lunatic. 

decay  and  feebleness  of  the  intellectual  faculties  are  the 
natural  concomitants  of  old  age.  They  are  not  the  evi- 
dences of  that  unsoundness  of  mind  which  will  justify  a 
jury  in  finding  a  man  a  lunatic.  To  warrant  this,  they 
must  be  such  as  to  import  a  total  deprivation  or  suspen- 
sion of  the  ordinary  powers  of  the  mind.  "  Being  non 
compos,  of  unsound  mind,  are  certain  terms  in  law,  and 
import  a  total  deprivation  of  sense  :  now  weakness  does 
not  carry  this  idea  along  with  it ;  but  courts  of  law  un- 
derstand what  is  meant  by  non  compos  or  insane,  as  they 
are  words  of  a  determinate  signification."  Ex  parte  JSurn- 
stay,  3  Afk.  168.  Old  age  has  evils  enough,  without  add- 
ing to  the  misfortunes  which  usually  accompany  it.  To 
deprive  an  old  man  of  the  control  of  his  property,  is  to 
strip  him  of  the  only  means  he  has  left  of  commanding 
that  respect  and  attention  which  is  all  that  renders  his  life 
endurable.  A  court  should  exercise  great  care  to  see 
that  mere  old  age  and  its  attendant  infirmities  are  not 
made  the  pretexts  for  establishing  that  unsoundness  of 
mind  which  will  deprive  a  man  of  his  liberty  and  his  prop- 
erty. In  England  the  jurisdiction  of  the  court  is  more 
extensive.  The  statute  11  Geo.  4,  and  1  William  4,  c.  60, 
gives  a  power  to  issne  a  commission  of  lunacy  in  all  cases 
where  an  individual  is  incapable  of  managing  his  affairs, 
although  he  be  neither  an  idiot,  nor  a  lunatic,  nor  of  un- 
sound mind,  in  the  strict  sense  of  these  terms. 

I  am  willing,  under  all  the  circumstances  of  this  case, 
to  afford  a  further  opportunity  for  investigation,  if  the 
petitioner  is  really  desirous  of  a  traverse,  and  has  mind 
enough  understandingly  to  make  such  a  request  of  the 
court.  This  petition  is  signed  by  Daniel  Vanauken,  but 
is  not  sworn  to  by  him.  I  think  it  is  proper  that  such 
a  petition  should  not  be  under  oath.  But  the  court  should 
be  satisfied  that  it  is,  in  truth,  the  petition  of  the  alleged 
lunatic.  He  should  be  capable  of  understanding  the  na- 
ture and  object  of  the  petition.  Christies  caxc,  5  Paige, 
242;  Shel.on  Lun.  118;  1  Collins  on  Lun.  172.  I  shall 


196  CASES  IN  CIIANCEKT. 

Hildreth  v.  Schillinger. 

direct  the  petitioner  to  be  brought  before  the  court,  in 
order  that  a  private  examination  may  be  had  for  the  pur- 
pose of  ascertaining  whether  he  understands  the  object 
of  the  petition,  and  desires  a  traverse.  If  the  distance  of 
the  petitioner's  residence  from  the  court  makes  this  incon- 
venient, I  shall  direct  the  examination  to  be  made  by  some 
discreet  master  of  the  court. 

CITED  i»  Collins,  Matter  of,  3  C.  E.  Gr.,  255, 


DANIEL  HILDRETH  et  al.  vs.  ISAAC  SCHILLEIS-GEE  et  al. 


E.  E.  went  to  the  office  of  S.,  a  scrivener,  who  drew  her  will,  and  after  it 
was  executed,  S.,  at  the  request  of  E.  E.,  put  it  in  his  private  secretary 
with  his  private  papers  for  safe  keeping.  To  the  knowledge  of  S.,  the  will 
was  never  sent  for,  or  taken  away  by  E.  E. ,  and  during  frequent  conversa- 
tions between  E.  E.  and  S.,  the  will  was  spoken  of.  E.  E.  dies,  and  S.,  upon 
searching  for  the  will,  finds  it  gone  from  the  place  where  he  deposited  it, 
and  upon  search  cannot  find  it.  He  states,  under  oath,  that  he  believes  the 
will  to  have  been  clandestinely  taken  from  his  secretary ;  held,  that  the 
presumption  is  that  this  was  the  last  will  of  E.  E.,  and  unless  that  pre- 
sumption is  overcome  in  some  legal  way,  will  be  established. 

The  evidence  in  this  case  stated,  and  the  reasons  given  for  the  conclusion, 
that  the  evidence  does  not  overcome  the  presumption  in  favor  of  the  al- 
leged paper  being  the  last  will  of  E.  E. 

There  is  no  reason  for  the  court  submitting  the  question  of  fact,  whether  a 
•will  has  been  cancelled,  or  surreptitiously  destroyed,  to  a  jury,  where  the 
evidence  is  such  as  to  create  no  embarrassing  doubt  in  the  mind  of  the  court. 


The  bill  was  filed,  on  the  20th  of  August,  1852,  by 
Daniel  Hildreth  and  Ann  his  wife,  George  Bennet  and 
Priscilla,  his  wife,  against  Isaac  Schillinger  and  Jane  his 
wife,  in  order  to  establish  the  will  of  Elizabeth  Eldridge, 
late  of  the  county  of  Cape  May,  deceased.  The  bill  charges, 
that  the  decedent  died  seized  and  possessed  of  real  and 
personal  estate  of  the  value  of  about  two  thousand  dol- 
lars; that  in  the  month  of  May,  1851,  the. said  Elizabeth 
made  her  last  will  and  testament  in  writing,  and  signed 
and  published  the  same  in  the  presence  of  three  subscrib- 


OCTOBER  TERM,  1854.  197 

Hildreth  r.  Schillinger. 

ing  witnesses,  and  attested'  in   the  manner   prescribed  by 
law  for  devising  real  estate. 

The  bill  sets  out  a  copy  of  the  will,  by  which  it  appears 
that,  after  ordering  all  her  just  debts  and  funeral  ex- 
penses to  be  paid,  she  did  give  and  bequeath  to  her 
daughter,  Jane  S.  Schillinger,  one  of  the  defendants,  a 
legacy  of  five  dollars  ;  to  her  daughters,  Ann  Hildreth  and 
Priscilla  Bennett,  two  of  the  complainants,  her  house  and 
farm,  situate  in  the  neighborhood  of  Fishing  creek,  in 
the  county  of  Cape  May,  New  Jersey,  equally  between 
them,  and  to  their  heirs  and  assigns  for  ever  ;  but  in  case 
her  said  daughter  Priscilla  should  die  without  lawful  heirs 
of  her  body,  and  the  said  house  and  farm  not  being  other- 
wise disposed  of  at  her 'death,  then  in  that  case  she  gives 
and  bequeaths  her  said  daughter  P's  part,  or  moiety,  to 
her  husband,  George  Bennett,  one  of  the  complainants,  dur- 
ing his  natural  life,  and  at  his  death  gives  the  same  moiety 
to  the  heirs  of  the  said  Ann  Hildreth  :  all  her  personal 
estate  she  gives  equally  to  her  daughters,  Ann  and  Pris- 
cilla. She  appoints  her  two  sons  in  law,  the  complainants, 
executors.  The  bill  charges  that  the  said  will  was  drawn 
by  Ezfcji.cl  Stevens,  an  experienced  scrivener  of  Cape  May, 
was  executed  at  his  office,  and  that  the  said  Elizabeth  re- 
quested him  to  keep  the  will  safely  until  called  for ; 
that  Stevens,  in  the  presence  of  the  said  Elizabeth,  folded 
the  said  will  in  an  envelope,  and  endorsed  on  the  same 
"  Mrs.  Elizabeth  Eldridge's  last  will  and  testament,"  and 
then  placed  it  in  his  secretary  with  other  valuable  papers, 
and  locked  the  same  up  ;  that  the  said  S.  frequently  saw 
the  said  envelope  afterwards  where  he  put  it  ;  that  the  said 
Elizabeth  departed  this  life  on  or  about  the  24th  day  of 
June,  1852  ;  that  after  her  decease,  the  said  Stevens  went 
to  his  secretary  to  get  the  will,  and  deliver  it  to  the  ex- 
ecutors therein  named,  and  could  not  find  it  ;  he  found  all 
the  other  papers  safe,  and  in  the  place  where  he  had  left 
them,  but  the  envelope  containing  the  will  could  not  be 
found  ;  that  he  immediately  searched  and  examined  all 


198  CASES  IN  CHANCEKY. 

Hildreth  v.  Schillinger. 

his  papers,  but  in  vain.  The  bill  charges  that  the  said  will 
has  been  surreptitiously  and  clandestinely  spoliated,  and 
either  destroyed  or  concealed,  and  suppressed  or  lost,  so 
that  the  same  cannot  be  produced  and  proved  according 
to  the  statute  of  this  state.  The  bill  further  shows  that 
Elizabeth  Eldridge  inherited  all  the  real  estate  of  which 
she  died  seized  of  her  father  ;  that  before  her  marriage, 
and  while  young,  she  had  a  daughter,  the  said  Ann,  one 
of  complainants  ;  that  she  afterwards  married  Jacob  Eld- 
ridge,  and  by  him  had  two  daughters,  Priscilla,  one  of  the 
complainants,  and  Jane  Schillinger,  one  of  the  defendants  ; 
that  for  many  years  before  the  decease  of  the  said  Eliza- 
beth, there  had  been  an  estrangement  between  her  and 
her  daughter  Jane ;  that  she  complained  frequently  of 
Jane's  ill-treating  her,  and  frequently  declared  her  deter- 
mination not  to  leave  her  said  daughter  anything ;  that 
after  the  execution  of  the  will,  and  before  the  death  of 
the  said  Elizabeth,  one  Jacob  Schillinger,  a  son  of  the 
said  Jane,  had,  or  pretended  to  have,  businctL  with  the 
said  Ezekial  Stevens,  and  was  at  the  office  of  said  Stevens 
when  said  Stevens  was  from  home,  and  alleging  that  he 
wanted  some  papers  which  said  Stevens  had  drawn  for 
him,  requested  that  the  secretary  in  which  the  said  will  was 
placed  should  be  opened  ;  and  the  family  of  the  said 
Stevens,  having  the  key,  opened  the  said  secretary,  and 
thus  the  said  Jacob  had  a  full  opportunity  of  abstracting 
and  committing  a  spoliation  of  said  will,  and  that,  so  far 
as  complainants  have  any  knowledge  or  belief,  no  other 
person  who  had  any  interest  in  the  will  had  access  to  the 
place  where  it  was  kept. 

The  bill  prays  that  the  said  will  may  be  set  up  and  es- 
tablished as  the  last  will  of  E.  E.  ;  that  the  said  Ann  Hill- 
dreth  may  be  decreed  to  hold  one  half  part  of  the  said 
real  estate,  and  one  half  the  personal,  according  to  the 
terms  of  the  said  will  ;  that  Isaac  S.  and  wife  be  decreed 
to  release,  &c.,  and  that  the  defendants  may  be  perpetually 
enjoined  from  setting  up  any  claim,  and  from  prosecuting 


OCTOBEE  TEEM,  1854.  199 

Hildreth  v.  Schillinger. 

any  action,  &c.,  as  heirs  at  law  of  the  said  E.  E.,  for  the 
said  lands  so  devised,  &c.,  and  for  further  relief,  <fcc. 

To  this  bill  the  defendants,  on  the  18th  of  November, 
1852,  filed  their  answer. 

They  say,  it  may  be  true  that  E.  E.  may  have  been  seized 
and  possessed  of  the  real  estate  mentioned  in  the  said  bill ; 
and  it  may  be  true,  for  aught  they  know  to  the  contrary, 

that,  on  or  about  the day  of  May,  A.  D.  1851,  the  said 

E.  E.,  being  of  sound  mind  and  memory,  made  and  duly 
executed  the  last  will  and  testament  in  writing,  and  signed, 
sealed,  and  published  the  same,  &c.,  and  that  it  was  of 
the  tenor  and  effect  as  alleged ;  and  it  may  be  true  that  the 
said  last  will  was  drawn  by  E.  E.  and  was  duly  executed, 
and  the  same  may  have  been  left  by  the  said  E.  E.  in  the 
hands  of  the  said  S.  for  safe  keeping,  and  the  will  may 
have  been  placed,  &c.;  but  as  these  defendants  are  entirely 
ignorant  of  all  said  matters,  and  know  nothing  about  the 
existence  of  any  such  will,  or  that  the  said  E.  E.  left  any 
will,  they  pray  that  the  complainants  may  be  put  to  strict 
proof  of  all  said  allegations  at  the  hearing. 

All  the  other  material  facts  charged  in  the  bill  are  an- 
swered in  the  same  manner  as  the  foregoing. 

To  this  answer  a  replication  was  filed,  and  proof  taken. 

The  complainants  examined  the  three  subscribing  wit- 
nesses to  the  alleged  will,  and  no  others. 

The  defendants  examined  Jacob  E.  Schillinger  only. 

A.  Broicning,  for  complainant,  cited  2  Sto.  Eq.  1445 — 9  ; 
2  Greenleaf,  §  G80,  681 ;  1  Jarmin  119;  8  Watts  cfe  Serg.' 
285  ;  2  Barr.  110  ;  3  Iredett  303 ;  Bailey  ct  at.  v.  Miller 
et  at.,  1  G.  C.  It.  223 ;  Den.  v.  Brown,  4  Cowen  490. 

J.  T.  Nixon,  for  defendants,  cited  2  Richardson^  8  Hep. 
191 ;  Lilly  v.  Lilly,  5  Ecc.  Rep.  C7  ;  6  Wend.  A\  195. 

THE  CHANCELLOR.     The  bill  alleges — 

list.  That  Elizabeth  Eldridge,  in  the  month  of  May,  1851, 


200  CASES  IN  CHANCERY. 

Hildreth  v.  Schillinger. 

made  and  executed  her  last  will  and  testament  in  due  form 
to  pass  real  and  personal  estate. 

2d.  That  at  the  time  of  her  death,  in  June,  1852,  this 
will  had  not  been  in  any  manner  revoked  or  cancelled  by 
her ;  but  that  during  her  lifetime,  without  her  knowledge 
or  consent,  it  was  surreptitiously  taken,  by  some  person 
unknown,  from  the  possession  of  the  scrivener  who  drew 
it,  and  with  whom  it  had  been  left  by  Elizabeth  Eldridge 
for  safe  keeping,  and  was  destroyed  or  is  concealed,  or  if 
not  so  taken,  that  the  said  will  has  been  lost. 

3d.  That  the  complainants  are  devisees  and  legatees  under 
that  will,  and  that  the  copy  set  out  in  the  bill  is  a  true  copy 
of  the  will  that  was  so  executed  by  the  said  Elizabeth 
Eldridge,  and  is  now  missing. 

The  bill  prays  that  the  alleged  paper  writing  may  be  es- 
tablished as  the  last,  will  and  testament  of  the  said  Elizabeth 
Eldridge. 

If  the  several  foregoing  allegations  are  sustained  by  the 
proofs  in  the  case,  then  the  complainants  are  entitled  to  the 
decree  of  this  court  establishing  the  will. 

Ann  Hildreth,  one  of  the  complainants,  is  an  illegiti- 
mate daughter  of  the  decedent.  Priscilla  Bennet,  another 
complainant,  and  the  defendant,  Jane  Schillinger,  are  the 
legitimate  children  and  only  heirs  at  law  of  the  deceased. 
The  property  in  dispute  was  inherited  by  Elizabeth  Eld- 
ridge from  her  father,  John  Taylor.  If  Elizabeth  Eld- 
ridge died  intestate,  Ann  Hildreth  is  cut  off  from  all 
participation  in  the  property.  If  the  will  is  established, 
all  that  Jane  Schillinger  takes  under  it  is  a  legacy  of  five 
dollars. 

That  Elizabeth  Eldridge,  in  the  month  of  May,  1851, 
executed  a  will,  and  that  it  was  in  due  form  to  pass  her 
real  as  well  as  personal  estate,  is  placed  beyond  dispute 
by  the  testimony.  The  three  subscribing  witnesses  to 
that  will  have  all  been  examined  as  witnesses.  Their  evi- 
dence agrees  in  every  particular,  and  proves  all  the  re- 
quirements of  the  statute  as  regards  the  execution  of  the 
paper. 


OCTOBEK  TERM,  1854.  201 

Hildreth  v.  Schillinger. 

The  contents  of  that  will  are  satisfactorily  established. 
Ezekiel  Stevens,  the  scrivener  who  drew  the  will,  is  one 
of  the  judges  of  the  Court  of  Common  Pleas  of  the 
countv  of  Cape  May.  The  draft  of  the  will,  which  ap- 
pears by  a  copy  produced  by  Judge  Stevens,  and  his  evi- 
dence in  the  cause,  show  him  to  be  a  gentleman  of  intel- 
ligence and  experience  in  such  matters,  and  a  witness 
upon  whom  the  court  can  rely  with  confidence.  The  con- 
tents of  the  paper  are  very  simple,  and  of  a  character 
which  the  witness  would  not  be  likely  to  forget.  A  legacy 
of  five  dollars  is  given  to  one  daughter,  and  the  residue 
of  the  personal  estate,  after  the  payment  of  the  funeral 
expenses  and  debts,  is  equally  divided  between  two  other 
daughters.  The  real  estate  is  given  to  two  of  the  daugh- 
ters. The  accuracy  of  the  witness,  as  to  the  contents  of 
the  paper,  nor  indeed  as  to  any  other  matter  to  which  he 
gives  testimony,  is  not  questioned  by  any  counter  evi 
dence  in  the  cause.  The  witness  produced  a  paper,  which 
he  says  is  a  copy  of  the  will  he  drew.  He  made  this  copy 
from  his  recollection  of  the  original,  soon  after  the  death 
of  Mrs.  Eldridge.  He  believes  it  to  be  correct,  and  says, 
if  it  is  not  word  for  word,  it  is  very  nearly  so  ;  the  substance 
is  the  same. 

Was  this  will  ever  revoked  or  cancelled  by  Mrs.  Eld- 
ridge?  This  is  really  the  only  contested  point  in  the 
cause. 

In  the  month  of  December,  1850,  Mrs.  Eldridge  gave 
to  Judge  Stevens  a  memorandum  by  which  to  draw  the 
will.  He  drew  it,  and  sent  it  to  her.  The  witness  says, 
"  In  the  month  of  May,  eighteen  hundred  and  fifty-one, 
she  drove  to  my  house  in  her  carriage  ;  Mr.  Hildreth  was 
with  her ;  she  stated  to  me  that  she  had  then  come  to  get 
tliat  will  or  writing,  as  she  expressed  herself,  executed  ; 
she  went  with  me  into  my  office,  and  handed  to  me  the 
same  instrument  that  I  had  written  for  her  in  December 
previous,  and  that  I  had  put  in  the  envelope  for  her ;  I 
then  asked  her  if  that  will  was  drawn  as  she  wished  it, 


202  CASES  IN  CHANCERY. 

Hildreth  r.  Schillinger. 

and  according  to  her  directions,  and  she  replied  that  it 
was,  in  every  respect ;  as  the  will  lay  before  me,  I  then 
filled  up  the  blanks  with  the  day  and  the  month,  and  the 
}ear,  and  put  a  seal  to  it ;  she  then  sat  down,  took  a  pen, 
and  wrote  her  name  to  the  will  in  the  presence  of  myself, 
Andrew  II.  Stevens,  and  Martha  S.  Swain ;  after  she  had 
signed  her  name  to  the  will,  I  asked  her,  placing  my  fin- 
ger upon  the  seal,  her  hand  being  still  upon  the  paper,  if 
she  acknowledged  that  to  be  her  hand  and  seal ;  she  re- 
plied that  she  did.  Before  we  signed  our  names  as  the 
witnesses,  I  held  up  the  paper  which  she  had  just  signed, 
and  asked  her  if  "she  acknowledged  that  to  be  her  last 
will  and  testament,  and  she  replied  that  she  did.  We 
then  sat  down  and  signed  our  names  as  witnesses  to  it, 
namely  myself,  my  son,  and  my  daughter,  Mrs.  Swain, 
after  doing  which  I  folded  it  up,  and  remarked,  I  believe 
it  is  now  executed  Mrs.  Eldridge.  She  then  observed  to 
me,  '  I  wish  you  would  now  take  this  will,  and  take  care 
of  it  until  it  is  called  for.'  I  told  her,  if  it  was  her  wish, 
I  would  endeavor  to  take  care  of  it  for  her ;  I  took  a 
piece  of  yellow  paper,  folded  it  up  in  letter  form,  and  put 
the  will  inside  of  it,  then  put  three  wafers  to  it,  one  in 
the  centre  and  one  on  each  side,  and  stamped  them  down. 
I  then  wrote  upon  it  a  subscription  in  a  large  legible 
hand,  '  Mrs.  Elizabeth  Eldridge's  last  will  and  testament.' 
She  was  sitting  by,  and  I  observed  to  her,  now,  if  I 
should  die  before  this  is  called  for,  they  will  know  what 
it  contains  by  the  subscription  upon  the  back  of  it ;  I  then 
took  the  will,  and  put  it  into  a  small  recess  in  my  secre- 
tary along  with  a  number  of  other  valuable  papers.  Be- 
tween the  time  of  placing  it  there  and  the  time  it  was 
called  for,  I  remember  seeing  it  precisely  where  I  had 
placed  it.  After  the  death  of  Mrs.  Eldridge,  which  gc- 
curred  in  the  latter  part  of  June  last  (1852),  I  think,  I 
was  going  in  the  neighborhood  where  her  executors  lived, 
and  I  went  to  my  secretary,  where  I  had  put  the  will,  to 
get  it,  for  the  purpose  of  delivering  it  to  the  executors. 


OCTOBER  TERM,  1854.  203 

Hildreth   v.  Schillinger. 

1  took  down  the  bundle  of  papers  from  the  recess  where  I 
had  deposited  the  will,  and  looked  over  them  all  for  it, 
but  it  was  not  there,  although  all  the  other  papers  be- 
longing there  were  there  ;  the  will  was,  however,  gone  ; 
I  have  since  then  made  a  thorough,  careful  and  minute 
search,  through  all  my  papers  for  the  will,  but  have  not 
been  able  to  rind  it ;  I  am  fully  satisfied,  from  my  exami- 
nation that  the  will  is  lost,  spoilated,  or  destroyed  ;  to 
the  best  of  my  knowledge  and  belief,  no  person  had  ac- 
cess to  my  secretary  which  contained  that  will,  except  my- 
self and  my  family." 

He  further  says,  "Elizabeth  Eldridge  never  did  call 
upon  me  to  take  that  will  out  of  my  hands  ;  she  never 
did  afterwards  express  any  dissatisfaction  in  reference  to 
that  will,  and  I  never  afterwards  had  any  conversation 
with  her  about  the  will  ;  I  saw  her  several  times  after  the 
will  was  drawn,  and  had  conversation  with  her,  but  she 
said  nothing  in  relation  to  the  will." 

The  fair  legal  presumption  from  this  evidence  is,  that 
the  will  drawn  by  Judge  Stevens  is  the  last  will  and  tes- 
tament of  Elizabeth  Eldridge.  Unless  that  presumption 
is  overcome,  that  will  ought  to  be  established  by  a  decree 
of  this  court. 

There  is  no  evidence  that  Mrs.  Eldridge  ever  made  any 
other  will  than  this  one  ;  there  has  been  no  intimation 
that  she  did,  and  there  is  nothing  in  the  case  to  justify 
the  suggestion.  The  defendants  examined  one  witness, 
Jacob  Schillinger,  and  they  insist  that,  by  him,  they  prove 
the  voluntary  destruction  of  the  will  in  question  by  the 
decedent.  Here  lies  the  real  issue  between  the  parties. 

Jacob  Schillinger  is  the  son  of  Jane  Schillinger,  who  is 
cut  off  by  this  will  with  a  legacy  of  live  dollars.  The 
bill  insinuates  that  Jacob  Schillinger  surreptitiously  took 
this  will  from  the  secretary  of  Mr.  Stevens.  It  alleges 
that  he  pretended  to  have  business  with  Judge  Stevens, 
and  that  he  went  to  his  office  when  he  was  from  home, 
requested  that  the  secretary  might  be  opened  for  «.he 


204  CASES  IN  CHANCERY. 

Hildreth  v.  Schillinger. 

purpose  of  his  getting  his  papers  ;  that  the  secretary  was 
unlocked  by  one  or  the  judge's  family,  and  that  Jacob 
Schillinger  had  a  full  opportunity  of  abstracting  and  com- 
mitting spoliation  of  the  will,  and  that  he  was  the  only 
person  interested  in  its  destruction  that  ever  had  the  op- 
portunity of  destroying  it. 

The  complainants  did  not  even  attempt  to  prove  the 
fact  upon  which  this  insinuation  was  founded.  Jacob 
Schillinger  being  produced  as  a  witness  on  behalf  of  the 
defendants,  the  complainants,  upon  cross-examination, 
questioned  him  as  to  the  circumstance  which  excited  the 
suspicion  against  him.  He  admits  he  went  to  Judge  Ste- 
vens' to  get  some  papers,  and  he  not  being  at  home,  Mrs. 
Stevens  unlocked  the  secretary.  He  says  he  saw  no  paper 
there  with  Mrs.  Eldridge's  name  on  it  ;  that  he  did  not 
touch  or  take  hold  of  any  papers  in  the  secretary  ;  that 
Mrs.  Stevens  looked  for,  but  did  not  find  them.  He  says 
he  did  not  look  for  them  ;  that  he  took  no  papers  away 
with  him.  Judge  Stevens  was  then  recalled,  and  testifies 
that  he  had  been  drawing  some  papers  for  Jacob  Schil- 
linger. 

The  evidence  entirely  exculpates  Mr.  Schillinger,  and 
takes  away  every  suspicion  of  the  will  having  been  taken 
away  by  him. 

But,  as  I  said,  this  witness  is  relied  upon  by  the  defend- 
ants to  prove  that  the  decedent  herself  destroyed  the  will. 
Mrs.  Eldridge  occupied  a  part  of  the  house  of  this  wit- 
ness. After  testifying  to  a  conversation  he  had  with  her 
in  reference  to  her  will,  he  states,  "  I  had  another  conver 
sation  with  her  upon  the  same  subject,  about  a  week  01 
two  before  they  moved  her  over  to  Daniel  Hildreth's. 
This  was  after  she  had  been  sick  and  confined  to  the 
house.  It  was  in  the  morning  after  I  had  taken  into  her 
room  an  arm-load  of  wood.  She  was  scolding  about  my 
grandfather's  will,  and  complaining  that  he  had  left  her 
nothing,  and  so  on  ;  she  said  that  her  children  were  all 
tired  of  her,  she  guessed,  and  that  Mrs.  Hildreth  had 


OCTOBEE  TERM,  1854.  205 

Hildreth  v.  Scbillinger. 

insulted  her  the  night  before,  and  that  Mrs.  Hildreth  would 
be  sorry  for  it  after  she  was  gone,  or  something  to  that 
effect ;  she  was  sitting  upon  her  bed ;  she  then  got  up  and 
went  to  her  bureau,  and  took  something  out  of  it,  and 
said  that  there  should  be  no  such  quarreling  about  her 
will  as  there  was  about  your  grandfather's  and  stuck  it 
into  the  stove,  and  then  said,  *  say  nothing  to  uncle  Daniel 
and  aunt  Nancy,'  and  that  was  the  last  I  ever  heard  of 
the  will  until  I  was  charged  with  taking  it  in  the  bill  filed 
in  this  cause.  It  was  a  paper  that  my  grandmother  took 
out  of  the  bureau;  it  was  yellow  paper,  I  recollect  that 
much  about  it." 

Was  this  the  will  ?  She  did  not  say  it  was,  but  she  cer- 
tainly intended  to  impress  the  witness  with  the  belief  that 
it  was.  Was  there  any  inducement  for  her  to  mislead 
him?  If  she  intended  to  destroy  the  will,  and  to  make 
Jacob  Schillinger  the  witness  of  its  destruction,  there  was 
no  need  of  her  adopting  this  mysterious  way  of  doing  it. 
If  she  intended  only  to  make  him  believe  she  had  de- 
stroyed the  will,  her  mysterious  manner  is  accounted  for. 
The  witness  had  heard  of  her  having  made  her  will.  He 
had  conversed  with  her  on  a  previous  occasion  respecting 
it.  He  had  reproached  her  for  "  cutting  off  "  his  mother, 
and  she  had  told  him  she  would  destroy  it.  She  was  now 
in  his  house  sick.  He  was  performing  for  her  acts  of 
kindness,  and  it  was  natural  she  should  desire  to  allay  his 
irritated  feelings  in  reference  to  the  mutter.  But  in  order 
to  arrive  at  the  conclusion  that  this  was  the  will,  we  must; 
solve  the  question,  how  it  came  into  her  possession  ?  That 
the  will  was  left  by  her  with  Judge  Stephens  for  safe  keep- 
ing, and  that  it  was  for  that  purpose,  by  him,  locked  up 
in  his  secretary,  there  cannot  be  a  doubt.  If  it  was  ob- 
tained by  her,  it  was  without  the  consent  or  knowledge 
of  Judge  Stevens.  She  could  not  have  obtained  it  herself. 
She  was  an  old  woman,  upwards  of  seventy  years  of  age, 
and  that  she,  by  any  means  could  herself  have  procured 
the  paper  from  the  place  where  it  was  so  securely  depo- 

VOL.  n.  a 


206  CASES  IN  CHANCERY. 

Brakelyr.  Sharp. 

sited  without  the  knowledge  of  some  one,  is  not  within 
the  range  of  probability.  Was  it  obtained  for  her  by  some 
third  person  ?  If  so,  where  is  that  individual  ?  Could  it 
have  been  obtained  by  any  one  without  the  knowledge  of 
Judge  Stephens,  or  of  some  one  of  his  family,  unless  in  a 
stealthy  manner  and  for  an  unlawful  purpose  ?  The  whole 
of  the  case,  then,  lies  just  here.  Does  the  presumption  of 
that  paper's  being  the  will  which  Jacob  Schillinger  saw 
the  old  lady  put  into  the  stove,  overcome  the  evidence  in 
the  cause,  that  the  will,  which  she  left  with  Ezekiel  Stevens 
for  safe  keeping,  was  never  taken  out  of  his  possession  with 
her  knowledge  or  consent  ?  I  am  satisfied  that  this  was  the 
last  will  and  testament  of  Elizabeth  Eldridge,  and  that  it 
was  never  revoked  or  cancelled  by  her. 

The  defendants'  counsel  insisted  that  this  question  ought 
to  be  submitted  to  a  jury.  The.  only  object  of  directing  an 
issue  would  be  to  inform  the  conscience  of  the  court.  If  I 
had  a  doubt  which  embarrassed  me  in  forming  a  judgment 
upon  the  question,  such  an  issue  would  be  proper.  The 
only  object  would  be  to  relieve  the  court  from  doubt.  As 
no  such  doubt  exists,  it  is  my  duty  to  decide  the  case  upon 
the  evidence  before  me. 

There  must  be  a  decree  establishing  the  will,  the  costs  of 
this  suit  to  be  paid  out  of  the  estate. 

CITED  in  Carlisle  v.  Cooper,  6  C.  E.  Or.  590. 


MATTHIAS  BKAKELY  vs.  ELIZABETH  MARTA  SHAEP  and  others. 

A.  is  the  owner  of  two  farms,  through  which  runs  a  natural  stream.  He  sells 
to  B.  the  farm  upon  which  the  watercourse  has  its  origin  ;  A.  is  entitled  to 
have  the  water  flow  upon  the  farm  which  he  reserves  the  same  as  he  en- 
joyed it  when  he  severed  his  title,  because  the  watercourse  did  not  begin  by 
the  consent  or  the  act  of  the  parties,  but  ex  jure  naturce.  But  water  con- 
veyed by  pipes  is  a  thing  which  is  created  and  controlled  by  the  parties, 
and  is,  in  its  very  nature,  different  from  a  natural  watercourse. 

C.  S.  died,  leaving  a  large  farm,  through  which  was  an  artificial  watercourse: 
Proceedings  were  had  in  the  Orphans  Court  for  partition  among  the  heirs, 


OCTOBEK  TEEM,  1854.  207 

Brakely  v.  Sharp. 

and  a  portion  of  the  farm  through  which  the  artificial  watercourse  run  was 
set  off  to  part  of  the  heirs,  and  another  portion  was  sold  under  an  order  of 
the  court.  Held,  that  the  purchasers  were  entitled  to  the  enjoyment  of 
the  watercourse  as  it  existed  at  the  time  of  the  sale.  The  act  of  the  com- 
missioners was  no  such  severance  of  the  unity  of  title  as  would  govern  the 
rights  of  the  grantor  to  the  enjoyment  of  the  watercourse. 

Although  a  man  can  have  no  easement  on  his  own  land,  yet,  by  the  mere 
severance  of  his  title,  he  may  create  such  easement,  and  the  test  as  to 
whether  such  easement  is  created,  is  whether  it  is  essential  to  the  beneficial 
enjoyment  of  the  land  conveyed.  It  is  created  ex  necessitate,  though  not 
by  the  words  of  the  grant. 


8.  JR.  Hamilton,  Sherrcwd,  and  Nevius,  for  complainant. 
Kennedy  and  W.  L.  Dayton,  for  defendants. 

THE  CHANCELLOR.  The  object  of  the  complainant's  bill 
is  to  secure  him  in  the  enjoyment  of  an  artificial  water- 
course, which,  commencing  on  an  adjacent  farm  of  two 
of  the  defendants,  was,  as  originally  constructed,  carried 
upon  the  farm  of  the  complainant,  and  there  terminated. 
For  a  history  of  the  case,  I  refer  to  the  proceedings  and 
to  the  opinion  delivered  on  the  motion  to  dissolve  the  in- 
junction which  had  been  allowed  upon  filing  the  bill' 
1  Stockton  10.  Upon  the  answer's  coming  in,  the  injunc- 
tion was  dissolved. 

Upon  reviewing  that  opinion,  I  now  think  I  was  in 
error  as  to  one  of  the  grounds  upon  which  I  reached  my 
conclusion  to  dissolve  the  injunction. 

The  title  to  the  two  farms,  the  one  now  owned  by  the 
complainant  and  the  other  by  two  of  the  defendants,  was 
originally  united  in  Christian  Sharp.  Upon  an  application 
to  the  Orphans  Court  by  one  of  the  heirs,  to  divide  the 
real  estate  of  Christian  Sharp,  the  part  of  the  farm  on  the 
northwest  side  of  the  road  was  set  off  to  the  widow  and 
Henry  Sharp,  two  of  the  defendants.  Subsequently,  but 
in  the  course  of  the  same  proceedings,  the  farm  now 
owned  by  the  complainant  was  sold,  and  through  this  sale 
he  derived  his  title.  I  erred  in  supposing  that  the  fact  of 
the  widow  and  Henry  Sharp  deriving  the  first  title  made 


208  CASES  IN  CHANCERY. 

Brakely  v,  Sharp. 

any  difference.  I  yet  think  the  principle  I  laid  down  was 
correct,  the  error  was  in  its  application  to  the  present  case. 
If  Christian  Sharp  had  himself  severed  his  unity  of  title, 
and  had  conveyed  to  the  defendants,  he  could  not  claim 
this  easement  upon  their  land.  It  would  be  derogating 
from  his  own  grant.  It  is  a  serious  encumbrance  upon  the 
defendants'  title,  and  I  cannot  conceive  upon  what  prin- 
ciple of  law  or  equity  Christian  Sharp  could,  after  war- 
ranting to  the  defendants  a  title  free  and  clear  of  all  en- 
cumbrances, claim  the  benefit  of  this  encumbrance,  on 
the  ground  of  its  being  incident  to  other  lands  which  he 
owned,  or  was  absolutely  necessary  to  their  benefical  en- 
joyment. It  was  his  duty  to  reserve  any  privilege  he  might 
desire  to  enjoy.  It  was  in  his  power  to  do  so.  By  what 
more  expressive  terms  could  he  abandon  any  such  privi- 
lege than  those  used  in  an  ordinary  deed  of  bargain  and 
sale  ?  There  is  a  difference  between  a  natural  watercourse 
and  an  artificial  construction  for  the  conveyance  of  water. 
A.  is  the  owner  of  two  farms  through  which  runs  a  natu- 
ral stream.  He  sells  to  B.  the  farm  upon  which  the  water- 
course has  its  origin.  A.  is  entitled  to  have  the  water  flow 
upon  the  farm  which  he  reserves  the  same  as  he  enjoyed 
it  when  he  severed  his  title,  because  the  watercourse  did 
not  begin  by  the  consent  or  act  of  the  parties,  but  eso 
jure  natures.  But  water  conveyed  by  pipes  is  a  thing  which 
is  created  and  controlled  by  the  parties,  and  is  in  its  very 
nature  different  from  a  natural  watercourse.  This  view  of 
the  case  is  sanctioned  by  the  authorities  referred  to  by 
Mr.  Justice  Story  in  Hazard  v.  Robinson,  5  Mason's  Rep. 
272. 

Whittock,  J.,  in  Sherry  v.  Piggot,  JSuls.  339,  says  there 
is  a  difference  between  a  way,  a  common,  and  a  water- 
course. Bracton,  lib.  4,  221,  222,  calls  them  servitutes  proe- 
diales,  the  e  which  begin  by  private  rigljt,  by  prescription, 
by  assent,  as  a  way  common,  being  a  particular  benefit,  to 
take  part  of  the  profits  of  the  land  ;  this  extinct  by  unity, 
because  the  greater  benefit  shall  drown  the  less :  a  .water- 


OCTOBER  TERM,  1854.  209 

Brakely  V.  Sharp. 

course  doth  not  begin  by  prescription,  nor  yet  by  assent, 
but  the  same  doth  begin  ex  jure  natures,  having  taken  this 
course  naturally,  and  cannot  be  averted. 

But  the  widow  and  Henry  Sharp  are  not  entitled  to  the 
position  of  purchasers  from  Christian  Sharp.  Here  was 
my  error.  The  complainant  derived  his  title  under  the 
same  proceedings  of  the  court  as  the  defendants  did 
their  title.  They  are  entitled  to  no  preference  from  the 
mere  fact  of  priority  in  the  date  of  any  paper  or  proceed- 
ings which  cast  the  title  upon  them.  The  proceedings  of 
the  court  must  be  looked  upon  as  a  simultaneous  act, 
through  which  all  parties  derive  their  title,  a  common 
source  from  which  both  titles  are  derived,  and  must  date. 
In  respect  to  priority  of  title,  both  parties  stand  in  a  like 
position  as  if  Christian  Sharp  had,  by  one  and  the  same 
act,  made  a  division  of  the  property  between  them. 

The  other  ground  upon  which  the  injunction  was  dis- 
solved was,  that,  by  the  pleadings,  it  appeared  that  the 
aqueduct  was  not  necessary  for  the  beneficial  enjoyment  of 
the  property.  The  final  decision  of  the  cause  must  now 
turn  on  this  same  point,  and  depends  upon  the  evidence 
which  has  been  taken.  I  reviewed  the  leading  authorities 
(1  Stockton's  JR.  10)  which  I  considered  as  establishing  this 
to  be  the  principle  which  must  govern  the  case,  and  I  will 
now  merely  refer  to  them.  Note  to  1  Saund.  Rep.  325  ; 
Morris  v.  Edgington,  3  Taunt.  R.  31 ;  Elaine's  lessee  v. 
Chambers,  I  Serg.  &  It.  169 ;  Pickering  v.  Staples,  5  Serg. 
<&  R.  ;  New  Ipswich  Wollen  factory  v.  Batcheldor,  3  N. 
II.  R.  190  ;  Johnson  v.  Jordan,  2  Mete.  234 ;  10  S.  <&  R. 
StucJder  v.  Tood,  Shep.  Touchstone  89  ;  Comyn's  Dig.,  voL 
4,  title  Grant  E.  11 ;  Nicholas  v.  Chamberlain,  2  Cro.  R. 
121 ;  Leonard  v.  White,  7  Mass.  8,  3  Kent  420 ;  Hazard  v. 
Rdbeson,  3  Mason's  R.  48 ;  U.  States  v.  Appleton,  1  Surn. 
492  ;  Story  v.  Odin,  12  Mass.  157  ;  Sicansborough  v.  Cov- 
entry, 9  Bing.  305  ;  Compton  v.  Richards,  1  Price  27 ; 
Robin  v.  Barnes,  Hob.  131 ;  1  B.  &  P.  374  (note)  j  Grant 

s* 


210  CASES  IN  CHANCERY. 

Brakely  v.  Sharp. 

v.  Chase  and  another,  17  Mass.  443  ;  Hewlins  v.  Shippam, 
5  Barn.  <&  Cress.,  210 ;  /Sherry  v.  Piggott,  Bulstrodds 
Eep.  339. 

Is  the  aqueduct,  then,  essential  to  the  beneficial  enjoy- 
ment of  the  premises  ?  If  it  is,  it  passes  by  the  grant  the 
same  as  a  way  by  necessity.  It  was  constructed  there  as 
long  ago  as  the  year  1810,  and  has  ever  since  been  used 
for  the  purposes  of  the  dwelling  house  and  other  build- 
ings erected  there.  It  is  the  only  mode  upon  the  premises 
by  which  water  fit  for  the  ordinary  family  use  has  been, 
and  still  is  supplied.  There  is  no  well  upon  the  premises. 
This  aqueduct  diverts  a  part  of  the  water  from  the  natu- 
ral watercourse  which  flows  through  both  farms.  The 
water  which  passes  down  the  natural  stream  is  corrupted 
by '  the  wash  from  the  public  highway  and  the  barnyard 
on  the  defendants'  premises,  so  as  to  render  the  water,  at 
times,  unfit  for  use.  The  evidence  is  abundantly  sufficient 
to  show  that  the  complainant's  farm  cannot  be  beneficially 
enjoyed  without  the  use  of  the  aqueduct. 

The  complainant  is  entitled  to  a  perpetual  injunction 
protecting  him  in  the  enjoyment  of  the  water  through  the 
artificial  channel  when  it  is  not  drawn  off  at  the  upright 
by  the  defendants,  Maria  and  Henry  Sharp,  for  use  upon 
their  premises. 

The  injunction  must  be  revived,  and  be  made  perpetual 
as  to  the  defendants,  Maria  Sharp,  Henry  Sharp,  Abram 
O.  Stites,  William  Creveling,  William  R.  Mete,  Obudy 
Carpenter,  William  Price,  and  Butler  Thomas,  but  with- 
out costs.  As  to  the  other  defendants,  the  bill  must  be 
dismissed,  with  their  costs  to  be  paid  them  by  the  com- 
plainants. They  disclaim  any  interest  in  the  subject  mat- 
ter of  the  controversy,  and  it  is  not  shown  that  they  have 
any. 

CITED  in  Seymour  v.  I^eivis,  2  Beas.  444;   Fetters  v.  Humphreys,  3  O.  E. 
Or.  263;  Carlisle  v.  Cooper,  6  C.  E.  Gr.  581. 


OCTOBER  TERM,  1854.  211 


Glover  v.   PoweLL 


JOHN  D.  GLOVER  and  others  vs.  ALEXANDER  A.   POWELL 
and  others. 


Little  Timber  creek  is  a  small  creek,  emptying  into  the  river  Delaware  about 
five  miles  below  the  city  of  Camden.  The  tide,  when  not  obstructed,  ebbs 
and  flows  about  two  miles  up  the  creek.  Some  time  in,  or  previous  to  the  year 
1760,  the  owners  of  the  meadow  land  adjacent  to  the  creek,  for  the  purpose 
of  improving  their  meadows  by  the  exclusion  of  the  tide  water, built  a  dam 
of  about  a  quarter  of  a  mile  wide  at  the  mouth  of  the  creek,  with  sluices 
and  other  fixtures.  In  November,  1760,  the  legislature,  of  the  then  colony 
of  New  Jersey,  passed  an  act  to  enable  the  owners  of  meadows  along  the 
creek  to  support  and  maintain  this  dam  and  fixtures  erected  for  the  aforesaid 
purpose.  The  act,  after  reciting  the  erection  of  the  dam  and  its  purposes, 
enacted  that  the  said  bank,  dam,  and  all  other  waterworks  already  erected, 
or  which  should  thereafter  be  found  necessary  to  be  erected,  for  the  more 
effectual  preventing  the  tide  from  overflowing  the  meadows  lying  on  the 

'  said  creek,  should  be  erected,  supported,  and  maintained  at  the  equal  ex- 
pense of  all  the  owners  and  possessors  of  the  meadows,  that  each  of  the  said 
owners  or  possessors,  then  or  thereafter,  might  hold  on  the  said  creek  be- 
tween certain  points  in  the  act  designated. 

It  further  enacts,  that  the  natural  watercourse  of  the  creek  should  be  key 
clear,  and  specified  the  manner  in  which  it  should  be  done.  It  then  pro- 
vides for  the  election,  by  all  the  land  owners  yearly,  of  two  managers,  and 
empowers  these  managers  to  assess  the  owners  and  possessors  of  the  meadows 
in  such  sum  or  sums  of  money  as  shall  be  by  them,  or  the  survivor  of  them, 
deemed  necessary  for  the  supporting,  repairing,  and  maintaining  the  bank, 
dam,  and  other  water  works.  This  act  was  accepted  by  the  owners  of  the 
meadow.  Managers  were  elected  under  it,  and  under  and  by  virtue  of  its 
provisions,  the  bank,  dam,  and  water  works  have  been  repaired  and  main- 
tained to  this  day.  A  large  amount  had  been  expended  on  the  works. 

The  legislature,  on  the  17th  of  March,  1854,  passed  au  act  declaring  Little 
Timber  creek  to  be  a  public  highway,  in  all  respects  as  fully  as  it  was  before 
the  said  crock  was  dammed  at  its  mouth  ;  and  the  township  committee  is 
authorized  and  required,  at  the  expense  of  the  township,  to  remove  the  dam, 
and  thereby  open  the  navigation  of  the  creek.  The  bill  was  filed  to  enjoin 
the  township  committee  from  discharging  the  duty  imposed  upon  them  by 
this  act. 

Held,  that  the  legislature  had  the  right  to  authorize  the  obstruction  of  the 
creek,  there  being  nothing  in  the  case  to  show  that  its  navigation  was  de- 
manded by  the  public  interest. 

It  dm*  not  follow  that  any  creek,  or  rivulet,  in  which  tho  tide  ebbs  and 
flows,  and  which  may  be  navigated  at  certain  tides  by  small  boats,  is  to  be 
dignified  with  the  appellation  of  an  arm  of  the  sea,  or  navigable  river,  and 
an  such  is  Ix-yond  the  jurisdiction  or  control  of  tho  legislature,  except  as  a 
public  highway. 


212  CASES  IN  CHANCEKY. 

Glover  v.   PowelL 

The  legislature  is  the  sole  judge  and  arbiter  to  determine  when  such  streams 
shall  be  considered  as  navigable  rivers,  and  be  maintained  and  protected 
as  such. 

The  act  of  1760  did  not  authorize  the  owners  of  the  meadows  simply  to 
continue  the  dam,  but  it  gave  the  authority  of  the  state  to  compel  its  con  • 
tinuance. 

The  act  of  the  legislature,  passed  the  17th  of  March,  1854,  which  authorizes 
and  requires  the  township  committee  to  remove  the  dam,  is  in  violation 
of  the  constitution  of  the  United  States,  which  declares  that  no  state  shall 
pass  any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  obliga- 
tion of  contracts.  It  was  a  virtual  repeal  of  the  act  of  1760,  under  the 
provisions  of  which  rights  had  become  vested,  and  valuable  property  had 
been  acquired.  It  is  in  violation  of  good  faith.  It  impairs  the  obligation  of 
a  contract. 

The  act  of  1854  was  also  repugnant  to  the  constitution  of  the  state  of  New 
Jersey,  as  taking  private  property  for  public  use  without  just  compensa- 
tion. 

A  partial  destruction  or  diminution  of  value  is  the  taking  of  private  property. 


The  bill  alleges,  that  the  complainants  are  the  owners 
in  severalty  and  in  fee  simple  of  about  128.63  acres  of 
meadow  land,  situate  in  the  township  of  Union,  in  the 
county  of  Camden,  on  both  sides  of  a  small  stream  of 
water  called  Little  Timber  creek,  emptying  into  the  river 
Delaware,  five  miles  below  Camden  city ;  that  the  said 
meadow  was  reclaimed  from  the  tide  waters  of  the  Dela- 
ware some  time  in,  or  previous  to  the  year  1760,  by  the 
owners  of  the  said  meadows,  who,  at  their  own  expense, 
erected  a  dam,  about  a  quarter  of  a  mile  in  length,  at  the 
mouth  of  the  creek,  with  sluices  and  other  water  works 
in  the  dam,  so  as  to  exclude  the  tide  from  the  meadow, 
and  drain  the  water  therefrom,  and  by  digging  ditches, 
and  have  greatly  improved  the  meadow ;  that  the  ex- 
pense of  such  dam  and  improvements  have  not  cost  less 
than  $8000  ;  that  to  revive  the  said  dam  would  wholly 
destroy  the  value  of  the  meadow  and  improvements ;  that 
the  said  creek  is  about  125  feet  wide  at  its  mouth ;  that 
it  gradually  becomes  narrower  as  you  pass  up  it ;  that  if 
the  dam  should  be  removed,  the  tide  would  flow  up  about 
two  miles;  that  its  depth  varies,  at  some  places  it  would 
probably  be  entirely  bare  at  low  water,  and  at  other  places 


OCTOBER  TERM,  1854.  213 


Glover  v.  Powell. 


five  or  six  feet  in  depth,  and  that  it  never  was  or  could 
have  been,  and  would  not  now,  if  the  said  dam  should  be 
removed,  be  of  any  material  importance  for  purposes  of 
navigation ;  that  the  complainants  are  unable  to  state  by 
what  authority  the  dam  and  water  works  were  originally 
erected,  but  that,  on  the  20th  day  of  November,  1760,  the 
legislature  of  the  colony  of  New  Jersey  passed  an  act  en- 
titled, "An  act  to  enable  the  owners  and  possessors  of 
meadow  lying  in  Little  Timber  creek,  in  the  county  of 
Gloucester,  to  support  and  maintain  a  certain  bank,  dam, 
and  other  water  works  lately  erected  across  said  creek,  in 
order  to  prevent  the  tide  from  overflowing  the  same,  and 
to  keep  the  former  watercourse  of  said  creek  open  and 
clear ;"  that  the  said  meadow  company,  so  created  by  said 
act  was  duly  organized,  and  is  still  kept  up  by  the  own- 
ers of  said  meadow,  and  that  by  taxes  levied  from  time 
to  time  upon  the  said  owners  and  their  lands,  under  the 
said  act,  the  said  dam  and  water  works  have  ever  since 
been  maintained  and  the  watercourse  kept  open  and 
clear ;  that  the  said  dam  and  water  works  are  the  abso- 
lute property  of  the  complainants,  and  that  it  is  not  com- 
petent for  the  legislature  of  New  Jersey  to  require  or  au- 
thorize the  said  works  to  be  removed  without  providing 
compensation ;  that  the  legislature  of  New  Jersey,  at  its 
last  session,  passed  an  act  entitled  "  An  act  to  restore  the 
navigation  of  Little  Timber  creek,  in  the  township  of 
Union,  in  the  county  of  Camden,  as  follows,  to  wit : 

"  1.  Be  it  enacted  by  the  Senate  and  General  Assembly  of 
the  State  of  New  Jersey,  that  Little  Timber  creek  is  hereby 
declared  to  be  a  public  highway,  in  all  respects  as  fully  as 
it  was  before  the  said  creek  was  dammed  at  the  mouth 
or  entrance  thereof,  into  the  river  Delaware,  and  the 
township  committee  of  said  township  are  hereby  author- 
ized and  required,  at  the  expense  of  said  township,  to 
remove  the  said  dam,  and  thereby  open  the  navigation  of 
the  said  Little  Timber  creek,  on  the  first  day  of  September, 
1854." 


CASES  IN  CHANCERY. 


Glover  v.  PowelL 


The  bill  alleges  that  the  said  act  is  unconstitutional 
and  void,  because  it  does  not  make  and  provide  compen- 
sation to  the  complainants  for  the  injury  they  will  sustain 
by  the  removal  of  the  dam  ;  that  the  defendants,  who  are 
the  said  committee,  intend,  on  the  first  day  of  September, 
to  remove  the  dam  and  water  works.  The  bill  prays  that 
the  defendants  and  their  successors  in  office  may  be  re- 
strained from  moving  the  said  dam,  or  any  part  thereof, 
and  thereby,  or  otherwise,  opening  the  navigation  of  said 
Little  Timber  creek. 

The  following  is  the  act  of  1760,  a  copy  of  which  is  an- 
nexed to  the  said  bill  of  complaint : 

"  An  act  to  enable  the  owners  and  possessors  of  meadows 
lying  on  Little  Timber  creek,  in  the  county  of  Glou- 
cester, to  support  and  maintain  a  certain  bank,  dam, 
and  other  water  works,  lately  erected  across  the  said 
creek,  in  order  to  prevent  the  tide  from  overflowing  the 
same,  and  to  keep  the  former  watercourse  of  said  creek 
open  and  clear. 

"  Whereas,  the  several  owners  and  possessors  of  the 
meadows  lying  on  both  sides  of  Little  Timber  creek, 
in  the  county  of  Gloucester,  have  lately  (by  the  mutual 
consent  of  all  the  said  owners  and  possessors)  erected  a  cer- 
tain bank,  dam,  and  other  water  works  across  the  aforesaid 
creek,  from  the  fast  land  in  the  line  between  the  lands  of 
Samuel  Harrison  and  Simon  Sparks,  on  the  north  side  of 
said  creek,  to  the  fast  land  of  Joseph  Harrison,  on  the 
south  side  of  the  same,  by  which  means  they  have  im- 
proved a  considerable  quantity  of  rough  swamp  into  good 
mowing  meadow,  which  is  likely  to  become  very  advan- 
tageous to  the  said  owners  and  possessors,  provided  the 
said  .bank  or  dam  and  other  water  works  can  be  well  and 
sufficiently  supported  and  maintained,  so  as  to  prevent 
the  tide  from  overflowing  the  same,  and  the  former  water- 
course of  said  creek  kept  open  and  clear — therefore, 

"  Be  it  enacted,  by  the  governor,  council,  and  general 
assembly,  and  it  is  hereby  enacted  by  the  authority  of  the 


OCTOBER  TEEM,  1854.  215 


Glover  v.  Powell. 


same,  that  from  and  after  the  publication  hereof,  the  said 
bank,  dam,  and  all  other  water  works  already  erected,  or 
that  shall  or  may  at  any  time  or  times  hereafter  be  found 
necessary  to  be  erected,  for  the  more  effectual  preventing 
the  tide  from  overflowing  the  meadows  lying  on  the  afore- 
said creek,  shall  be  erected,  supported,  and  maintained 
at  the  equal  expense  of  all  the  owners  and  possessors  of 
the  same,  in  proportion  to  the  quantity  of  meadow  that 
each  of  the  said  owners  or  possessors,  now  or  hereafter, 
may  hold  on  the  said  creek,  between  the  aforesaid  dam  and 
a  dam  called  William  Harrison's  dam,  near  the  head  of  the 
aforesaid  creek. 

"  And  be  it  further  enacted  by  the  authority  aforesaid, 
that  the  natural  watercourse  of  the  said  creek,  between 
the  aforesaid  dams,  shall  at  all  times  hereafter  be  kept 
open  and  clear,  so  as  to  give  the  water  a  sufficient  fall 
from  off  the  meadows  at  the  head  of  the  same,  in  the 
same  manner  and  proportion  as  aforesaid,  and  all  the 
mud,  grass,  and  other  rubbish  that  shall  be  dragged  from 
out  of  the  same  shall  be  equally  divided,  as  near  as  con- 
veniently may  be,  to  each  side  of  said  creek,  and  to  the 
end  that  the  said  bank,  dam,  and  other  water  works  may 
at  all  times  hereafter  be  well  and  sufficiently  supported 
and  maintained,  and  the  said  watercourse  kept  open  and 
clear. 

"  Be  it  further  enacted  by  the  authority  aforesaid,  that 
all  the  owners  and  possessors  of  the  aforesaid  meadows 
shall  and  may,  at  all  times  hereafter,  on  the  first  Tuesday 
in  April  yearly,  meet  and  assemble  at  the  town  of  Glou- 
cester, and  then  and  there,  by  plurality  of  voices  of  them 
so  met,  elect  and  choose  two  persons  to  be  managers  the 
ensuing  year  (until  which  time  William  Harrison,  junior, 
and  Thomas  Bispham  are  hereby  appointed  managers), 
which  said  managers,  or  the  survivor  of  them,  in  case  one 
should  happen  to  die  within  said  year,  shall  have  full 
power  to  a^ess  the  said  owners  or  possessors,  pursuant  to 
the  directions  of  this  act,  in  such  sum  or  sums  of  money 


216  CASES  IN  CHANCEKY. 

Glover  u.  PowelL 

as  shall  be  by  them,  or  the  survivor  of  them,  thought  ne- 
cessary for  the  supporting,  repairing,  and  maintaining  the 
aaid  bank,  dam,  and  other  water  works,  and  for  keeping 
the  said  watercourse  open  and  clear  as  aforesaid  during 
iie  said  year ;  and  if  any  of  the  said  owners  or  possessors 
shall  neglect  or  refuse  to  pay  the  said  sum  or  sums  of 
money  that  shall  or  may,  from  time  to  time,  be  assessed 
on  him  or  them  for  the  space  of  twenty  days  next  after 
the  same  shall  have  been  demanded,  it  shall  and  may  be 
lawful  for  the  said  managers,  or  the  survivors  of  them,  to 
sue  all  and  every  such  person  or  persons,  in  their  or  his 
own  names  or  name,  for  the  respective  sum  or  sums  of 
money  he,  she,  or  they  were  assessed  at,  in  an  action  of 
debt,  if  five  pounds  or  under,  before  any  one  justice  of 
the  peace  within  said  county,  if  above,  in  any  court  of  re- 
cord where  the  same  may  be  cognizable,  and  give  the  said 
assessment  in  evidence,  and  the  said  court  or  justice  of 
the  peace  are  hereby  empowered  to  give  judgment  and 
execution  for  the  same,  with  costs  of  suit ;  and  it  shall  or 
may  be  lawful  for  the  said  managers  or  manager,  at  all 
times  hereafter,  to  dig  lume  or  sand  from  out  of  the  hills 
adjoining  to  either  end  of  the  aforesaid  bank,  for  the  rais- 
ing and  repairing  the  same. 

"  And  be  it  further  enacted  by  the  authority  aforesaid, 
that  if  the  owners  or  possessors  aforesaid  shall  neglect  to 
meet  on  the  first  Tuesday  in  April  yearly,  as  aforesaid,  to 
choose  managers,  as  aforesaid,  that  then  and  in  such  case 
the  managers  chosen  for  the  preceding  year,  or  the  survi- 
vor of  them,  shall  be  continued  in  the  said  office  the  en- 
suing year,  and  so  continued  from  year  to  year  until  the 
said  owners  or  possessors  shall  meet  and  elect  others  in 
their  room,  and  shall  have  the  same  power  and  authority, 
to  all  intents  and  purposes,  as  if  the  said  owners  and  pos- 
sessors had  met  and  elected  them  agreeably  to  the  direc- 
tions of  this  act. 

"  And  be  it  further  enacted  by  the  authority  aforesaid, 
that  the  said  managers  shall  yearly  account  to  the  said 


OCTOBER  TERM,  1854.  217 


Glover  v.  Powell. 


owners  and  possessors,  and  produce  fair  accounts  and  re- 
ceipts for  all  moneys  by  them  received  and  expended  by 
virtue  of  this  act,  and  shall  deliver  the  balance  of  the 
moneys  remaining  in  their  hands  to  the  succeeding  mana- 
gers, first  deducting  thereout  two  shillings  in  the  pound 
for  all  moneys  by  them,  or  either  of  them,  expended  for 
the  purposes  aforesaid ;  and  if  the  said  managers,  or  either 
of  them,  shall  neglect  or  refuse  to  pay  the  balance  remain- 
ing in  his  or  their  hands  to  the  succeeding  managers,  it 
shall  and  may  be  lawful  for  the  said  succeeding  managers 
to  sue  for  and  recover  the  same,  with  costs  of  suit,  in  man- 
ner aforesaid. 

"  And  be  it  further  enacted  by  the  authority  aforesaid, 
that  it  shall  and  may  be  lawful  for  any  tenant  or  tenants 
that  now  are  or  hereafter  may  be  in  possession  of  any  part 
of  the  aforesaid  meadows,  to  bring  in  his  or  their  accounts 
of  moneys  paid  or  services  performed,  pursuant  to  the 
directions  of  this  act,  against  his  or  their  landlord  or  land- 
lords, which  shall  be  allowed  out  of  his  or  their  rent  or 
rents;  and  where  it  shall  happen,  at  any  time  or  times 
hereafter,  that  the  owners  or  possessors  of  any  of  the 
aforesaid  meadows  shall  not  reside  on  the  same,  nor  in 
any  other  place  within  said  county,  nor  no  other  person 
to  represent  him  or  them  to  pay  the  several  sum  or  sums 
of  money  expressed  thereon  as  aforesaid,  that  then  it  shall 
and  may  be  lawful  for  the  said  managers,  or  the  survivor 
of  them,  for  the  time  being  to  rent  out  part  of  said  mea- 
dows, or  the  whole,  if  necessary,  for  such  a  term  as  the 
rent  thereof  will  amount  to  a  sum  sufficient  to  pay  the  said 
assessment  or  assessments  as  aforesaid,  and  no  longer." 

On  filing  the  bill,  the  complainants  applied  to  the  Chan- 
cellor for  an  injunction.  The  Chancellor  ordered  a  copy 
of  the  bill  of  complaint  to  be  served  on  the  defendants, 
and  a  rule  to  show  cause,  on  a  day  and  at  a  place  therein 
named,  why  an  injunction  should  not  issue. 

The  defendants  filed  a  joint  and  several  answer. 

The  answer  alleges,  that  before  the  said  dam  was  erected, 
VOL.  n.  T 


218  CASES  IN  CIIANCEEY. 

Glover  v,  Powell. 

the  tide  did  flow  up  it  for  more  than  two  miles,  so  that 
the  said  creek  was,  for  that  distance,  navigable  for  scows, 
barges,  shallops,  arid  other  flat  bottomed  vessels,  of  not 
less  than  twenty-five  tons  burthen,  and  of  a  depth  for  that 
distance  of  not  less  than  five  or  six  feet,  and  for  the 
greater  part  of  that  distance  of  a  much  greater  depth,  and 
which,  if  said  dam  had  not  been  erected,  would  have  been 
of  material  importance  for  navigation ;  that  they  do  not 
believe  the  said  dam  was  erected  by  authority  of  law,  but 
charge  that  the  same  dam  and  water  works  were  erected 
by  the  unauthorized  and  illegal  action  of  the  owners  of 
said  meadow,  for  their  own  private  purposes,  without  re- 
gard to  the  navigation,  and  were,  when  originally  erected, 
and  until  sanctioned  by  the  act  of  1760,  a  purpresture  and 
nuisance,  liable  to  be  at  any  time  abated  ;  that,  in  1760,  the 
navigation  of  said  creek  being  supposed  to  be  of  little  im- 
mediate importance,  the  legislature  passed  the  act  referred 
to,  subject  to  the  provisos  and  conditions  therein  contained  ; 
that  the  said  act  made  it  the  duty  of  the  said  land  owners  to 
deepen  the  watercourse  of  the  creek  between  certain  dams 
mentioned  in  the  said  act,  and  comprising  the  navigable 
part  of  said  creek,  open  and  clear,  so  as  to  give  the  water 
a  sufficient  fall  from  off.  the  meadows  at  the  head  of  the 
same,  which  condition  and  provision  of  said  act  was  es- 
sentially necessary,  as  well  as  to  preserve  the  channel  of  said 
creek  for  future  use  for  navigation,  as  by  maintaining  the 
drainage  of  said  meadows,  to  prevent  the  water  from  be- 
coming stagnant  and  injurious  to  the  health  of  the  adja- 
cent country ;  that  the  said  act  gave  no  right  of  property, 
absolute  or  otherwise,  as  against  the  public  and  the  then 
colony  of  New  Jersey,  to  the  said  owners  of  said  mea- 
dows, dam  and  water  works,  and  in  and  to  the  bed  of  the 
said  creek,  but  was  simply  a  license  or  toleration  of  a 
nuisance,  and  authorized  the  continuance  of  said  dam  for 
the  purpose  of  draining  the  said  meadows  during  the 
pleasure  of  the  said  legislature,  the  said  license  being  liable 
to  revocation  whenever  the  public  interest  required  it. 


OCTOBER  TERM,  1854.  219 


Glover  v.  PowelL 


The  answer  alleges,  that  the  natural  watercourse  of  said 
creek  has  not  been  kept  open  and  clear  according  to  the 
terms  of  the  act ;  that,  in  consequence  of  this  neglect, 
the  water  has  become  stagnant,  the  meadows  deteriorated 
in  value,  and  the  health  of  the  inhabitants  of  the  adjacent 
country,  and  more  particularly  of  the  city  of  Gloucester, 
has  been  greatly  injured,  and  the  said  stagnant  waters 
have  become  a  nuisance  highly  injurious  to  the  inhabit- 
ants ;  that,  in  opinion  of  defendants,  if  the  said  dam  were 
removed,  the  meadows  would  be  improved  by  the  de- 
posits, &c.;  that  the  said  dam  is  so  injurious  to  the  health 
of  the  inhabitants  as  to  require  its  abatement ;  that  the 
settlement  and  opening  of  the  country,  and  the  increase 
of  the  population  adjacent  to  the  creek,  making  the  navi- 
gation of  increased  importance,  and  the  nuisance  requir- 
ing the  opening  of  the  creek  to  thfc  tide,  the  legislature, 
at  its  last  session,  passed  the  act  recited  in  the  bill  of  com- 
plaint. They  admit  that  they  are  the  township  commit- 
tee, and  that,  as  such  officers,  and  as  agents  of  the  legis- 
lature, they  submit  that  the  legislature  have  a  right  to 
direct  the  dam  removed,  &c. 

Counsel  were  heard  on  both  sides. 

A.  Browning  and  W.  L.  Dayton,  for  the  complainant, 
insisted — 

1st.  That  the  Legislature  have  power  and  authority  to 
authorize  the  damming  of  small  navigable  creeks.  Wilson 
et  al.  v  Blackbird  Creek  Marsh  Co.  2  Peters  245  ;  Cox  v. 
State,  3  Blackfortfs  R.  197;  Sinnickson  v.  Johnson,  2 
Harr.  152. 

That  the  power  had  been  frequently  exercised  by  the 
legislature.  Learning  cfe  Spicei',  554 ;  Allison's  Laws  of 
N.  Jersey,  under  word  Marsh,  fifty-two  acts  are  found  of 
this  character.  Oifford's  Index,  letter  D. 

2d.  The  act  of  1760  has  the  same  force  and  effect  as  if  it 
authorized  the  original  erection  of  the  dam.  2  Kent  616  ; 
3  U.  S.  Dig.  244,  letter  Principal  and  Agent,  §  273-4-5. 

3d.  The  power  in  the  state  is  based  upon  the  principle, 


220  CASES  IN  CHANCERY. 

Glover  v.  Powell. 

that  in  the  state  is  vested  the  right  of  property  in  the  bed 
of  the  river.  Angell  on  Tide  Waters  20-22.  The  dam  is 
the  private  property  of  the  individuals  who  erected  it. 

4th.  The  act  is  unconstitutional.  Art.  1,  §  16.  of  the 
Constitution  of  N.  Jersey  declares  private  property  shall  not 
be  taken  for  public  use  without  just  compensation.  And 
again,  Art.  4,  §  7-9,  individuals  or  private  corporations 
shall  not  be  authorized  to  take  private  property  for  public 
use  without  just  compensation  first  made  to  the  owners. 

5th.  Tested  rights  of  property  acquired  by  virtue  of  a 
statute  cannot  be  divested  by  repeal  of  the  statute.  Benson 
et  al.  v.  The  Mayor,  &c.,  of  N.  York  et  al.  10 ;  Barb.  223. 

6th.  Where  a  license  is  executed,  and  the  licensee  has 
acquired  rights,  the  license  cannot  be  revoked,  so  as  to 
divest  those  rights  without  compensation.  7  U.  S.  Dig.) 
License,  346. 

They  also  cited  2  Harr.  314 ;  3  11.  200  ;  Angell  on 
Watercourses  100 ;  1  Conn.  382 ;  1  Baldw.  205 ;  2  J.  C. 
.R.  162 ;  4  W.  C.  C.  R.  601. 

T.  P.  Carpenter  and  J.  F.  Randolph,  for  defendants, 
contra,  cited  Hargrave's  Tracts  8,  9  ;  Woolrych  on  Water- 
courses 40 ;  Angell  on  Tide  Waters  80-89 ;  Arundell  v. 
McCuHough,  10  Mass.  70  ;  Saxton  380 ;  People  v.  Saratoga 
Railroad  Co.,  15  Wend.  135  ;  2  Black.  Com.  347 ;  2  Zdb. 
647;  Charles  River  Bridge,  11  Peters  544;  Providence 
Bank  v.  Billings,  4  Peters  514 ;  Chitty's  Prerogative  391 ; 
15  Vin.  94,  License  K,  note;  6  Watts  &  Serg.  101 ;  9  Jb. 
9 ;  Rundle  v.  D.  and  R.  C.  Co.,  1  Wallace  275 ;  same 
case,  4  flow.  R.  80;  13  Conn.  87;  2  Am.  L.  Gas.  506;  11 
Mete.  55 ;  2  Denio  461 ;  1  G.  C.  R.  192 ;  1  Waterman 
Eden  on  Ju.  138,  note  1. 

THE  CHANCELLOR.  When  this  bill  was  filed,  and  an  ap- 
plication made  for  an  injunction,  an  order  was  made  that 
a  copy  of  the  bill  should  be  served  on  the  defendants,  and 
that  they  should  show  cause,  on  a  day  named,  why  an  in 
junction  should  not  issue.  The  defendants  availed  them- 


OCTOBEK  TERM,  1854.  221 


Glover  v.  Powell. 


selves  of  the  opportunity,  thus  afforded  them,  of  putting 
in  their  answer  to  the  bill,  and  of  being  heard  by  counsel 
in  opposition  to  the  application. 

The  bill  is  purely  an  injunction  bill,  and  asks  that  the 
defendants  may  be  perpetually  restrained  from  demolish- 
ing a  dam,  and  water  works  connected  with  it,  at  the  mouth 
of  Little  Timber  creek,  in  the  county  of  Camden. 

Little  Timber  creek  is  a  small  creek  emptying  into  the 
river  Delaware,  about  five  miles  belown  the  city  of  Camden. 
The  tide,  when  not  obstructed,  ebbs  and  flows  about 
two  miles  up  the  creek.  Some  time  in,  or  previous  to  the 
year  1760,  the  owners  of  the  meadow  land  adjacent  to 
the  creek,  for  the  purpose  of  improving  their  meadows 
by  the  exclusion  of  the  tide  water,  built  a  dam  of  about 
a  quarter  of  a  mile  wide  at  the  mouth  of  the  creek,  with 
sluices  and  other  fixtures. 

In  November,  1760,  the  legislature  of  the  then  colony  of 
New  Jersey,  passed  an  act  to  enable  the  owners  of  mea- 
dows along  the  creek  to  support  and  maintain  this  dam 
and  fixtures  erected  for  the  aforesaid  purposes.  The  act, 
after  reciting  the  erection  of  the  dam  and  its  purposes, 
enacted,  that  the  said  bank,  dam,  and  all  other  water 
works  already  erected,  or  which  should  thereafter  be  found 
necessary  to  be  erected  for  the  more  effectual  preventing 
the  tide  from  overflowing  the  meadows  lying  on  the  said 
creek,  should  be  erected,  supported,  and  maintained  at 
the  equal  expense  of  all  the  owners  and  possessors  of  the 
meadows,  that  each  of  the  said  owners  or  possessors  then, 
or  thereafter,  might  hold  on  the  said  creek  between  cer- 
tain points  in  the  act  designated.  It  further  enacts,  that 
the  natural  watercourse  of  the  creek  should  be  kept  clear, 
and  specified  the  manner  in  which  it  should  be  done.  It 
then  provides  for  the  election,  by  all  the  land  owners 
yearly,  of  two  managers,  and  empowers  these  managers 
to  assess  the  owners  and  possessors  of  the  meadows  in 
such  sum  or  sums  of  money  as  shall  be  by  them,  or  tho 
survivor  of  them,  deemed  necessary  for  the  supporting, 

T* 


222  CASES  IN  CHANCERY. 

Glover  v.  Powell. 

repairing,  and  maintaining  the  bank,  dam,  and  other  water 
works.  It  confers  upon  these  managers  power  to  collect 
the  assessments  by  suit  at  law ;  or  if  the  owner  of  the 
meadow  assessed  is  absent,  and  beyond  the  reach  of  legal 
process,  it  provides  for  the  leasing  of  his  land,  for  the 
purpose  of  paying  such  assessment.  There  are  other  pro- 
visions of  the  act  to  carry  out  its  important  object,  viz  :  to 
make  it  compulsory  on  all  meadow  owners,  whose  lands 
are  benefited  and  rendered  more  valuable  by  the  dam  and 
works,  to  contribute  to  repair  and  maintain  them.  This 
act  was  accepted  by  the  owners  of  the  meadow.  Mana- 
gers were  elected  under  it,  and  under  and  by  virtue  of  its 
provisions,  the  bank,  dam,  and  water  works  have  been 
repaired  and  maintained  to  this  day.  It  is  alleged  that  up- 
wards of  eight  thousand  dollars  have  been  expended  on 
the  works ;  that  the  value  of  the  meadows  have  thereby 
been  greatly  enhanced,  and  that  the  demolishing  the  dam 
would  destroy  the  value  of  the  meadows. 

The  legislature,  at  its  last  session,  passed  an  act  declaring 
Little  Timber  creek  to  be  a  public  highway,  in  all  respects 
as  fully  as  it  was  before  the  said  creek  was  damned 
at  its  mouth ;  and  the  township  committee  is  authorized 
and  required,  at  the  expense  of  the  township,  to  remove 
the  dam,  and  thereby  open  the  navigation  of  the  creek, 
on  the  first  day  of  September  next.  It  is  to  enjoin  the 
township  committee  of  the  township  of  Union,  in  the 
county  of  Camden,  from  discharging  the  duty  imposed  upon 
them  by  this  act,  that  this  bill  is  filed. 
-  In  the  first  place,  it  is  insisted  that  the  dam  at  the  mouth 
of  Little  Timber  creek  destroys  the  navigation  of  a  navi- 
gable stream  where  the  tide  ebbs  and  flows,  and  that  the 
legislature  have  no  right  or  power  to  authorize  such  an 
•  obstruction. 

It  appears,  from  the  pleadings,  that  at  certain  states  of 
the  tide,  this  creek,  if  unobstructed,  is  navigable  by  small 
flat  bottomed  boats  for  at  least  two  miles  from  its  mouth. 
It  .does  not  appear  that  it  ever  has  been  used  for  the  pur* 


OCTOBER  TERM,  1854.  223 


Glover  v.  Powell. 


poses  of  navigation.  It  has  not  been  navigated  since  the 
year  1760.  There  is  no  allegation,  on  the  part  of  the  de- 
fendants, and  nothing  in  the  case  to  show  that  its  naviga- 
tion now  is  demanded  by  the  public  interest,  or  that,  as  a 
navigable  stream,  it  would  be  any  way  beneficial  to  the 
public  for  the  purposes  of  trade  or  agriculture.  Admit, 
for  the  sake  of  the  argument,  that  the  state  legislature 
has  not  the  power  permanently  to  obstruct  or  to  destroy 
any  navigable  river  within  its  territorial  jurisdiction,  it 
does  not  follow  that  any  creek  or  rivulet,  in  which  the 
tide  ebbs  and  flows,  and  which  may  be  used  at  certain 
tides  by  small  boats  for  individual  convenience,  is  to  be 
dignified  with  the  appellation  of  an  arm  of  the  sea  or 
navigable  river,  and,  as  such,  beyond  the  jurisdiction  or 
control  of  the  legislature,  except  as  a  public  highway. 
Washed,  as  more  than  two-thirds  of  the  borders  of  ouf 
state  is,  by  the  sea  and  by  the  rivers  Hudson  and  Dela- 
ware, and  their  bays,  the  small  creeks  and  rivers  made  by 
the  force  of  the  tides  into  the  upland,  in  extent  from  a 
mile  to  six  miles,  are  almost  innumerable.  At  high  tides, 
many  of  them  may  be  navigated  with  small  bottomed 
boats,  and  have  been  occasionally  arid  with  advantage,  bj 
individuals  owning  the  adjacent  meadows,  for  the  trans- 
portation of  grass,  and,  perhaps,  other  articles  of  mer- 
chandise. Many  of  them  have  been  cut  off  from  the  sea, 
under  the  express  sanction  of  the  legislature,  for  the  pur- 
pose of  reclaiming  and  improving  the  adjacent  meadow 
land  any  extending  public  roads,  and  the  navigation  of 
many  more  has  been  totally  destroyed  without  any  legal 
authority,  and  no  complaint  made  by  the  public  or  by  in- 
dividuals on  account  of  the  manifest  advantage  resulting 
to  the  public  from  the  obstruction.  Most  certainly  a  court 
of  justice  would  not  be  justified  in  declaring  that  there 
is  no  authority  in  the  state  to  determine  when  such  streams 
shall  be  considered  as  navigable  rivers,  and  be  maintained 
and  protected  as  such,  or  to  determine  when  they  may 
be  obstructed,  and  their  navigation  destroyed,  for  the 


224  CASES  IN  CHANCERY. 

Glover  v.  Powell. 

public  necessity  or  convenience.  The  legislature  must  be 
the  sole  judge  and  arbiter  for  the  public  in  this  matter, 
and  courts  have  no  right  to  question  this  authority.  In 
the  exercise  of  powers  conferred'  by  the  constitution  upon 
the  general  government,  questions  may  arise  between  it 
and  the  state  governments  ;  but  no  individual  can  ques- 
tion the  legislation  of  the  state  in  reference  to  what  is 
called  common  rights  of  navigation,  unless  he  can  sum- 
mon to  his  aid,  in  some  way,  the  legislation  of  the  general 
government,  which  is  paramount  authority.  The  authori- 
ties will,  I  think,  be  found  to  sustain  this  doctrine.  Some 
will  be  found  to  go  much  further,  and  to  declare  that  the 
mere  fact  of  the  tide  ebbing  and  flowing,  and  of  the  chan- 
nel being  such  as  to  make  the  creek  navigable  at  certain 
periods  of  the  tide,  does  not  entitle  it  to  the  protection  of 
the  court  as  a  public  navigable  river.  In  the  case  of  The 
King  v.  Montague  and  others,  4  B.  <£.  C.  596,  10  E.  C.  L. 
413,  it  was  decided  that  a  public  right  of  navigation  in  a 
river  or  creek  may  be  extinguished,  either  by  an  act  of 
parliament  or  writ  of  ad  quod  damnum,  and  inquisition 
thereon,  or  under  certain  circumstances,  by  commission- 
ers of  sewers,  or  by  natural  causes,  such  as  the  recess  of 
.the  sea  or  an  accumulation  of  mud.  &c.  And  where  a 
public  road  obstructing  a  channel  (once  navigable)  has 
existed  for  so  long  a  time  that  the  state  of  the  channel  at 
the  time  when  the  road  was  made  cannot  be  proved,  in 
favor  of  the  existing  state  of  things,  it  must  be  presumed 
that  the  right  of  navigation  was  extinguished  in  one  of 
the  modes  before  mentioned,  and  the  road  cannot  be  re- 
moved as  a  nuisance  to  that  navigation.  In  the  case  of 
The  Mayor  of  Lynn  v.  Turner,  Cowp.  86,  which  was  a  suit 
brought  against  the  corporation  of  Lynn  for  not  repairing 
and  cleansing  a  certain  creek  into  which  the  tide  of  tho 
sea  was  accustomed  to  flow  and  reflow,  Lord  Mansfield, 
pn  the  argument,  asked  counsel,  "How  does  it  appear 
that  this  is  a  navigable  river  ?  The  flowing  and  reflowing 
•of  the  tide  does  not  make  it  so,  for  there  are  many  places 


OCTOBEK  TERM,  1854.  225 


Glover  v.  PowelL 


into  which  the  tide  flows  which  are  not  navigable  rivers,  and 
the  place  in  question  may  be  a  creek  in  their  own  private 
estate." 

The  flux  and  reflux  of  the  tide  is  prima  facie  evidence 
of  a  navigable  river,  but  it  is  not  conclusive  evidence. 
Miles  v.  Rose  and  another,  5  Taunt.  706.  The  strength  of 
this  prima  facie  evidence,  says  Bagley,  J.,  in  the  case  of 
Rex  v.  Montague,  arising  from  the  flux  and  reflux  of  the 
tide,  must  depend  upon  the  situation  and  nature  of  the 
channel.  If  it  is  a  broad  and  deep  channel,  calculated  for 
the  purposes  of  commerce,  it  would  be  natural  to  conclude 
that  it  has  been  a  public  navigation ;  but  if  it  is  a  petty 
stream,  navigable  only  at  certain  periods  of  the  tide,  and 
then  only  for  a  very  short  time  and  by  very  small  boats, 
it  is  difficult  to  suppose  that  it  ever  has  been  a  public  na- 
vigable channel. 

Commonwealth  v.  Breed,  4  Pick.  460.  An  inf  onnation  in 
the  nature  of  a  quo  warranto  was  filed  by  the  direction  of 
the  legislature,  alleging  that  Breed,  the  respondent,  had 
erected  and  still  maintains  a  bridge  across  a  navigable 
arm  of  the  sea,  between  Chelsea  and  Belle  Island,  whereof 
the  passing  of  vessels  is  obstructed,  and  requiring  him  to 
answer  by  what  authority  he  claims  to  keep  up  and  main- 
tain the  bridge.  The  respondent  set  up  a  law  of  Massa- 
chusetts, passed  in  the  year  1816,  which  authorized  him 
to  build  a  bridge  convenient  for  the  accommodation  of 
the  proprietors  of  Belle  Island  ;  that  it  should  be  built 
with  a  draw  not  less  than  fifteen  feet  wide  ;  that  the  pro- 
prietor should,  at  all  times  when  necessary,  have  the  draw 
raised,  at  his  own  expense,  for  the  convenient  passing  of 
vessels  through  the  same. 

The  solicitor  general  replied,  that  the  statute  granted 
the  respondent  the  privilege  of  erecting  a  bridge  for  the 
private  accommodation  of  passing  and  repassing  to  and 
from  the  island,  the  same  being  the  private  estate  of  the 
respondent,  and  that  the  grant  was  not  for  any  public 
easement  or  convenience  ;  that  it  was  the  intent  of  tho 


226  CASES  IN  CHANCERY. 

Glover  v.  Powell. 

statute  that  the  draw  should  be  of  sufficient  width  to  permit 
the  convenient  passing  of  all  such  vessels  as  had  been 
accustomed  to  navigate  the  inlet  before  the  erection  of  the 
bridge,  and  with  such  necessary  piers,  &c.  The  respondent 
rejoined,  that  he  had  complied  with  the  provisions  of  the 
statute,  and  thereupon  issue  was  joined.  The  jury  found 
that  the  water  above  the  bridge  was  navigable  for  coasting 
vessels  of  one  hundred  tons  burthen,  and  was  used  before 
the  building  of  the  bridge,  and*  that  the  draw  was  not  of 
sufficient  width.  The  court  said,  the  legislature  are  to  de- 
termine when  the  public  convenience  and  necessity  require 
such  an  obstruction  to  navigation,  and  upon  what  terms  and 
conditions  it  shall  be  allowed. 

Rowe  v.  Granite  Bridge  Corporation,  21  Pick.  344.  The 
company  was  authorized  to  construct  a  road  from  Milton  to 
Dover,  and  to  locate,  build,  and  construct  a  bridge  across 
Neponset  river,  in  continuation  of  the  line  of  the  road. 
The  plaintiff  was  the  owner  of  a  piece  of  salt  meadow  in 
Milton.  He  alleged,  that  from  time  immemorial,  there 
had  been  a  creek  commencing  at  the  highest  part  of  the 
marsh,  and  passing  through  it  to  Neponset  river,  which 
creek  was  of  sufficient  depth  and  width  to  admit  boats, 
gondolas,  and  light  craft  to  pass  up  and  down  the  creek 
in  common  tides,  and  that  such  craft  might  be  used  to 
advantage  in  removing  the  crops  of  hay  from  the  marsh  ; 
that  the  defendants  had  laid  out  their  road  over  the  marsh 
and  across  the  creek,  and  were  proceeding  to  fill  up  the 
creek.  An  injunction  was  asked  to  restrain  the  defendants. 
The  court  decided,  that  a  creek  in  a  salt  meadow,  in 
order  to  be  deemed  navigable,  must  not  be  merely  sufficient 
to  float  a  small  boat  at  high  water,  but  must  be  navigable 
generally  and  commonly  to  some  purpose  useful  to  trade 
and  agriculture.  C.  J.  Shaw,  in  giving  the  opinion 
of  the  court,  says,  "  It  is  not  every  ditch  in  which  the 
salt  water  ebbs  and  flows  through  the  extensive  salt 
marshes  along  the  coast,  and  which  serve  to  admit  and 
drain  off  the  salt  water  from  the  marshes,  which  can  be 


OCTOBER  TERM,  1854.  227 


Glover  v.  Powell. 


considered  a  navigable  stream.  Nor  is  it  every  small  creek 
in  which  a  fishing  skiff  or  a  gunning  canoe  can  be  made 
to  float  at  high  water  which  is  deemed  navigable.  But  in 
order  to  have  this  character,  it  must  be  navigable  to  some 
purpose  useful  to  trade  and  agriculture.  It  is  not  a  mere 
possibility  of  being  used  under  some  circumstances,  as  at 
extraordinary  high  tides,  which  will  give  it  the  character 
of  a  navigable  stream,  but  it  must  be  generally  and  com- 
monly useful  to  some  purpose  of  trade  or  agriculture." 

In  the  case  of  Thompson,  Wilson  <&  others,  plaintiffs  in 
error,  v.  The  Blackbird  Creek  Marsh  Company,  defend- 
ants, 2  Peters  245.  Blackbird  creek,  in  the  state  of  Dela- 
ware, was  navigable  for  steamers  of  upwards  of  ninety  tons 
burthen.  Under  an  act  of  the  state  of  Delaware,  the  de- 
fendants constructed  a  dam  across  the  creek,-  by  which  the 
navigation  was  obstructed.  The  court  decided  that  the  act 
of  the  legislature  authorizing  the  dam  was  not  in  violation 
of  the  constitution  of  the  United  States. 

There  can,  I  think,  be  no  doubt  that  the  legislature  had 
the  power  to  authorize  the  erection  of  a  dam  at  the  mouth 
of  Little  Alloways  creek.  There  is  nothing  in  the  case  to 
show  that  it  ever  was  a  navigable  stream,  or  that  a  boat  of 
any  size  ever  passed  up  it. 

The  defendants  further  insist,  that  the  dam  having  been 
originally  made  and  constructed  without  the  authority  of 
the  state,  the  true  construction  of  the  act  of  1760  is  to  give 
to  the  defendants  not  a  grant  of  any  right  which  belonged 
to  the  state,  but  a  mere  license  to  continue  a  nuisance  al- 
ready existing,  and  that  this  license  was  revocable  at  plea- 
sure. 

It  may  well  be  questioned,  upon  the  case  presented  to 
the  court,  whether  this  dam  was  originally  a  nuisance, 
and  whether  it  could  not  be  maintained  without  legislative 
sanction.  If  it  was  not  a  navigable  river,  then  it  might 
be  obstructed  without  the  authority  of  the  legislature  ;  and 
although  the  fact  of  the  ebb  and  flow  of  the  tide  \$  prima 
facie  evidence  of  its  being  a  navigable  river,  it  may  be 


228  CASES  IN  CHANCERY. 

Glover  c.  Powell. 

doubted  whether  the  case  presented  does  not  overcome 
such  evidence.  At  any  rate,  if  the  question  for  injunction 
turned  upon  that  point,  the  court  would  not  permit  the 
defendants  to  be  deprived  of  their  property  without  af- 
fording them  the  opportunity  of  overcoming  such  evi- 
dence. 

But  while  it  is  true  that  the  dam  was  not  originally 
erected  under  the  act  of  1760,  the  construction  of  this 
act  contended  for  by  the  defendants  cannot  be  admitted. 
The  dam  has  been  maintained  under  that  act  for  nearly  a 
century.  The  act  did  not  authorize  the  owners  of  the 
meadows  simply  to  continue  the  dam,  but  it  gave  the  au- 
thority of  the  state  to  compel  its  continuance.  It  has  not 
been  continued  by  the  voluntary  act  of  individuals,  but 
they  have  been  compelled  to  maintain  it  by  the  power  and 
force  of  law.  This  act  created  a  quasi  corporation,  pro- 
vided for  the  annual  election  of  managers,  conferred  upon 
them  power  to  assess  property,  and  clothed  them  with  au- 
thority to  enforce  these  assessments.  How,  then,  with  any 
propriety,  can  it  be  said,  that  this  act  was  a  license  only  to 
continue  a  nuisance  already  existing?  Whether  this  act 
can  be  repealed  at  pleasure,  so  as  to  deprive  parties  who 
have  acquired  rights  under  it,  is  the  important  question 
upon  which  this  case  turns. 

The  act  of  the  legislature,  passed  the  17th  March,  1854, 
which  authorizes  and  requires  the  township  committee  of 
the  township  of  Union  to  remove  the  dam,  is  in  violation 
of  the  constitution  of  the  United  States,  which  declares, 
that  no  state  shall  "  pass  any  bill  of  attainder,  ex  post  facto 
law,  or  law  impairing  the  obligation  of  contracts."  It  is 
a  virtual  repeal  of  the  act  of  1760.  The  last  named  act 
was  a  grant.  It  granted  valuable  powers  to  the  owners  of 
meadows  along  Little  Timber  creek.  In  the  Dartmouth 
College  case,  Justice  Story  remarks  :  "  A  grant  of  fran- 
chise is  not,  in  point  of  principle,  distinguishable  from  a 
grant  of  any  other  property.  If,  therefore,  this  charter 
were  a  pure  donation,  when  the  grant  was  complete,  and 


OCTOBER  TERM,  1854.  229 


Glover  v.  Powell. 


accepted  by  the  grantors,  it  involved  a  contract  that  the 
grantees  should  hold,  and  the  grantors  should  not  reas- 
sume  the  grant,  as  much  as  if  it  had  been  founded  on  the 
most  valuable  consideration."  Under  the  provisions  of  the 
act  of  1760,  rights  have  become  vested,  and  valuable  pro- 
perty has  been  acquired.  These  powers  and  this  property 
have  been  enjoyed  under  the  protection  of  this  act  for 
nearly  a  century  past.  The  state  has  participated  in  the 
benefits  conferred.  The  property  acquired  under  the  act 
has  been  taxed  for  the  support  of  the  state  and  municipal 
governments.  It  is  in  violation  of  good  faith,  it  impairs 
the  obligation  of  a  contract  which  has  been  enjoyed  to 
the  mutual  benefit  of  both  parties,  and  it  is  therefore  re- 
pugnant to  the  constitution  of  the  United  States.  It  is  in 
direct  conflict  with  repeated  judicial  decisions  declaring 
similar  acts  void.  Fletcher  v.  Peck,  6  Cranch  87  ;  State  of 
New  Jersey  v.  Wilson,  7  Cranch  164 ;  Dartmouth  College  v. 
Woodward  4  Wheat,  518  ;  Trent  and  others  v.  Taylor  and 
others,^  G ranch  43  ;  Story's  Com.  on  the  Constitution  of  the 
U.  States,  3  vol.  256. 

The  act  of  1854  is  also  repugnant  to  the  constitution  of 
the  State  of  New  Jersey.  Art.  1,  §  16,  declares  private 
property  shall  not  be  taken  for  public  use  without  just 
compensation.  And  Art.  4,  §  7,  part  9,  individuals  or  pri- 
vate corporations  shall  not  be  authorized  to  take  private 
property  for  public  use,  without  just  compensation  first 
made  to  the  owners.  The  dam  and  water  works  in  ques- 
tion are  private  property.  They  have  been  constructed, 
maintained  and  paid  for  by  the  owners  of  the  meadow 
along  the  creek.  They  have  been  acquired  under  the  ex- 
press sanction  of  law.  The  value  of  the  meadow  is  de- 
stroyed by  the  execution  of  the  law  in  question,  and  thus 
may.be  said,  with  propriety,  to  be  taken  from  the  owners. 
A  partial  destruction,  a  diminution  of  their  value,  is  the 
taking  of  private  property.  This  act  cannot  be  carried 
into  effect  without  a  violation  of  the  constitution  of  the 
state. 

VOL.  n.  u 


230  CASES  IN  CHANCERY. 

"Whitehead  v.  Gibbons. 

But  to  avoid  the  force  of  these  objections  to  the  act, 
the  defendants  set  up,  in  their  answer,  that  this  dam  is  a 
nuisance  ;  that  the  conditions  contained  in  the  act,  and 
upon  which  the  rights  and  privileges  of  the  act  are  secured 
to  the  defendants  have  been  violated,  and  that  therefore 
the  legislature  have  ordered,  and  have  a  right  to  authorize 
and  direct  the  removal  of  the  nuisance.  But  the  defend- 
ants must  justify  themselves,  and  can  only  jnstify  them- 
selves under  the  act.  The  act  declares  the  object  to  be 
to  restore  the  navigation  of  the  creek.  The  act  can  .  be 
executed  for  no  other  purpose. 

But  suppose  the  conditions  of  the  act  to  have  been  vio- 
lated, and  that  the  grant  has  been  forfeited,  the  forfeiture 
must  be  declared  by  due  process  of  law.  The  legislature 
have  no  right  to  condemn  the  defendants  unheard,  and 
deprive  them  of  their  property  in  this  summary  way.  If 
they  can  do  it  in  this  case,  then  they  may  repeal  every 
act  of  incorporation  on  the  statute  book  upon  the  same 
pretext. 

CrrfcD  in  Stevens  v.  Pat.  and  Newark  R.  R.  Co.,  5  Vr.  552  ;  State,  Hud. 
Co.  Land  Imp.  Co.  v.  Seymour;  6  Vr.  59;  Williamson  v.  N.  J.  Southern 
R.  R.  Co.,  2  Stew.  334. 


IKA  C.  WHITEHEA.D  and  others,  executors  of  William  Gib- 
bons vs.  WILLIAM  H.  GIBBONS  and  others. 

The  testator  first  charged  all  his  estate,  both  real  and  personal,  with  the  pay- 
ment of  his  debts  ;  he  then  declared  that  the  revenues  should  be  used  for 
that  purpose,  together  with  such  other  appropriations  as  he  makes.  Held, 
that  the  word  appropriations  evinced  the  intention  of  the  testator  to  desig- 
nate and  set  apart  the  portion  referred  to  from  his  other  property  for  a 
specific  object,  viz.  to  constitute  a  fund  in  the  hands  of  his  executors  to  pay 
his  debts. 

It  is  a  settled  rule  that  the  personal  estate  is  the  primary  fund  to  pay  the 
debts,  and  that  it  is  not  relieved  from  the  burthen  by  the  debts,  in  express 
terms,  being  charged  upon  the  realty ;  and  that-  wherever  it  is  aided  either 
by  a  legal  or  an  equitable  fund,  it  must  be  itself  in  the  first  place  applied. 

This  rule  is  within  the  control  of  the  testator,  and  is  not  applicable  where 
his  intention  to  the  contrary  is  either  expressed  or  clearly  implied.  That 


OCTOBER  TERM,  1854  231 


Wliitehead  v.  Gibbons. 


intention  must  not  be  simply  to  charge  the  realty,  but  to  exonerate  the 
personalty. 

Personal  property  not  specifically  bequeathed,  must  be  applied  before  specific 
legacies. 

A  residuary  clause  in  a  will  was  as  follows:  "  All  the  rest  and  residue  of  my 
estate,  real  and  personal  and  mixed,  wherever  it  may  be  situated  or  found, 
that  I  may  die  possessed  of,  not  hereinbefore  enumerated,  provided  for, 
given,  &c.,  I  do  hereby  give,  &c.,  to  my  son  William."  It  was  argued 
that  testator  did  not  die  possessed  of  the  rents  of  his  real  estate  and  the  in- 
terest on  obligations,  &c.-,  which  accrued  after  his  decease.  But  it  was 
held  that  it  was  the  intention  of  the  testator  that  the  residuary  clause 
should  embrace  everything  he  had  a  right  to  dispose  of,  not  specifically  de- 
vised or  bequeathed. 


F.  B.  Chetwood,  F.  T.  Frelinghuysen  and  A.  0.  Zdbris- 
kie,  for  the  defendants  Ward  McAllister  and  wife,  who 
filed  exceptions  to  the  report  of  master. 

J.  P.  Bradley,  Robert  Vanardsdale  and  A.  Whitehead 
who  appeared  for  other  parties  to  the  suit,  contra. 

TIIE  CHANCELLOR.  The  executors  of  the  last  will  of 
"William  Gibbons,  deceased,  filed  their  bill  for  a  settlement 
of  the  estate  in  this  court.  The  only  parties  to  the  suit  are 
the  executors,  who  are  the  complainants,  and  the  four 
children  of  the  testator,  and  Ward  McAllister,  who  mar- 
ried one  of  the  daughters,  defendants. 

Upon  the  coming  in  of  the  master's  report,  to  whom  a 
reference  was  made  to  take  the  accounts  of  the  executors, 
Ward  McAllister  and  wife  filed  exceptions  to  that  report. 
It  is  upon  these  exceptions  that  the  case  is  now  presented. 

The  controversy  between  the  parties  has  given  rise  to 
several  important  questions  involving  the  true  construction 
of  the  testator's  will. 

The  first  exception  is  as  follows  :  "  For  that  the  report 
contemplates  that  the  funds  provided  by  the  third,  fifth, 
and  twelfth  items  of  the  will  of  the  testator,  William 
Gibbons,  deceased,  shall  first  be  applied  to  the  payment 
of  debts ;  whereas,  by  the  terms  of  the  said  will,  the  gene- 
ral revenues  of  the  estate  mentioned  in  tke  second  item 


232  CASES  IN  CHANCERY. 

Whitehead  v.  Gibbons. 

of  the  will  should  be  charged  primarily  with  the  payment 
of  debts,  in  relief  of  funds  mentioned  in  the  third,  fifth, 
and  twelfth  items." 

The  testator  did  intend  to  designate  the  fund  out  of 
which  his  debts  should  be  paid.  His  determination,  that 
the  payment  of  his  debts  should  be  the  first  duty  dis- 
charged by  the  executors  in  the  settlement  of  his  estate, 
is  to  be  seen  on  every  page  of  his  will.  To  secure  this 
leading  object  he  binds  his  whole  estate,  and  declares 
that  n'o  devise  or  bequest  shall  take  effect  until  all  his  just 
debts  are  paid.  The  testator  evidently  drew  the  will  him- 
self. He  has,  by  vain  repetitions,  made  that  obscure, 
which  he  intended  should  be  clear,  definite,  and  certain. 

By  the  second  item  of  his  will,  the  testator  declares, 
"  I  do  order  and  direct  that  all  my  just  debts  be  paid  and 
freely  discharged,  for  which  purpose  I  bind  my  whole,  en- 
tire and  undivided  estate  ;  and  I  direct  that  my  estate  shall 
not  be  divided,  and  no  devise  or  bequest  take  effect,  until 
all  my  just  debts  are  paid  and  fully  discharged  from  the 
general  revenues  of  my  estate,  together  with  such  appro- 
priations as  are  hereinafter  mentioned  and  provided." 

The  testator's  estate  consisted  of  a  large  real  estate,  fur- 
niture in  his  dwelling,  stock  upon  his  various  farms,  money 
on  hand,  bonds  and  mortgages,  and  bank  stock.  He  spe- 
cifically devised  and  bequeathed  the  whole  of  his  estate  to 
his  four  children,  except  certain  personal  property  speci- 
fied in  the  third,  fourth,  fifth,  and  twelfth  items  of  the  will, 
making  a  residuary  clause  evidently  for  the  purpose  of 
providing  against  any  omission  he  might  have  made  in 
specifying  so  extensive  a  property,  declaring  that  all  the 
rest  and  residue  of  his  estate,  real  and  personal  and 
mixed,  or  wherever  it  might  be  situated  or  found,  that 
he  died  possessed  of,  not  in  his  will  enumerated,  provided 
for,  given,  granted,  devised,  or  bequeathed,  or  in  any 
manner  disposed  of,  he  did  give,  grant,  demise,  and  be- 
queath to  his  son  William  Hayward  Gibbons,  his  heirs 
and  assigns,  forever.  The  testator  did  not  intend  to  die 


OCTOBEE  TERM,  1854.  233 


"Whitehead  v.  Gibbons. 


intestate  as  to  any  of  his  property,  real  or  personal  :    this  is 
manifest  from  the  whole  will. 

By  the  "  third  item  "  of  his  will,  the  testator  orders  that 
his  whole  and  entire  stock  of  blood  horses  shall  be  sold 
at  public  auction,  in  the  month  of  May  or  October  next 
following  his  death,  and  the  proceeds  of  the  sale  appro- 
priated to  the  payment  of  his  debts,  and  the  surplus,  after 
that,  be  divided  equally  among  his  four  children. 

By  the  "fifth -item,"  he  orders  all  bonds  secured  by 
mortgages,  promissory  notes,  and  other  obligations  and 
contracts  for  the  payment  of  money,  except  Ashbel  Bruen's 
bond  of  $12,000,  secured  by  mortgage,  and  four  bonds  of 
the  city  of  Savannah,  to  be  collected  with  all  possible  de- 
spatch, and  the  proceeds  applied  to  the  payment  of  his 
debts,  and  any  surplus,  over  and  above  what  is  sufficient 
for  that  purpose,  to  be  equally  divided  among  his  four 
children. 

By  the  "  twelfth  item,"  he  directs  that  all  money  on 
hand  in  any  bank  with  which  he  kept  an  account,  and  at 
his  dwelling  house,  or  elsewhere,  also  all  and  every  balance 
of  account  for  money  or  funds  due  him  in  the  hands 
of  all  and  any  of  his  agents  or  attorneys,  or  persons  with 
whom  he  might  have  dealings  in  any  part  of  the  world, 
shall  first  be  applied  to  the  payment  of  his  funeral  ex- 
penses, then  to  the  payment  of  his  debts,  then  to  the  current 
temporary  expenses  of  his  children,  at  home  or  abroad,  at 
school  or  otherwise,  until  the  adjustment  of  his  affairs  in 
ascertaining  the  condition  of  the  estate  and  their  respec- 
tive rights,  and  any  balance  remaining  should  go  into  his 
general  estate,  and  be  divided  equally  between  his  four 
children. 

The  exceptants  insist  that  the  testator  intended  the 
"general  revenues"  of  the  estate  as  the  primary  fund  to 
pay  his  debts.  lie  charged  the  "  general  revenues  "  of  his 
estate,  together  with  the  appropriations  made  in  the  third, 
fifth,  and  twelfth  items  of  his  will,  with  the  payment  of  hia 
debts. 

u* 


234  CASES  IN  CHANCERY. 

Whitehead  v.  Gibbons. 

What  constitutes  the  general  revenues  of  this  estate  ?  1 
think  it  is  plain  the  testator  meant  the  rents  and  profits  of 
his  real  estate,  and  the  interest  or  profits  arising  out  of 
the  personal  estate.  He  had  made  specific  devises  of  a1! 
his  real  estate  to  his  children.  He  had  charged  it  with  the 
payment  of  his  debts.  He  had  declared  the  devises  should 
not  take  effect  until  all  his  debts  were  paid.  As  to  his 
personal  property,  he  makes  a  specific  appropriation  of 
the  whole  of  it.  He  appropriates  a  pai't  of  it  to  secure  a 
trust  fund ;  another  portion  of  it  he  directs  his  executors 
to  convert  into  money  to  pay  his  debts ;  another  part  to 
convert  into  money  to  pay  his  funeral  expenses ;  then  his 
debts ;  then  the  temporary  expenses  of  his  children  until 
his  estate  should  be  settled ;  and  he  then  specifically  be- 
queaths all  the  personal  property  he  could  enumerate, 
not  before  appropriated  to  his  four  children,  making  pro- 
vision for  residue,  if  any.  He  does  not  mean  the  personal 
property  in  the  third,  fifth,  and  twelfth  items  to  con- 
stitute a  part  of  the  general  revenue.  He  had  directed  that 
to  be  converted  into  money.  Nor  did  he  mean  the  pro- 
ceeds or  interest  arising  out  of  that  fund  to  make  any 
part  of  that  revenue  ;  for,  in  the  second  item  of  the  will, 
he  distinguishes  it  from  the  general  revenue,  as  the  appro- 
priations provided  with  the  '*  general  revenues "  to  pay 
his  debts.  We  then  have  two  distinct  funds,  the  general 
revenue  of  the  testator's  estate,  chargeable  with  his  debts, 
and  a  fund  which  has  been  raised  out  of  specific  personal 
property,  converted  into  money  by  the  express  orders  of 
the  testator.  Which  fund  is  to  be  the  first  appropriated  for 
the  purpose  ? 

It  appears  to  me  to  have  been  the  intention  of  the  tes- 
tator, and  that  he  meant  the  phraseology  he  used  as  an 
expression  of  such  intention,  that  the  appropriations  made 
in  the  second,  fifth,  and  twelfth  items  of  the  will  should 
constitute  the  primary  fund  for  the  payment  of  his  debts. 
And  again,  if  there  is  an  absence  of  an  intention  as  to 
which  fund  shall  be  primarily  liable,  upon  general  princi- 


OCTOBER  TERM,  1854.  235 

Whi^ehead  v.  Gibbons. 

pies,  the  debts  are  first  to  be  paid  out  of  the  property  men- 
tioned in  the  items  enumerated. 

The  testator  first  charges  all  his  estate,  both  real  and 
personal,  with  the  payment  of  his  debts ;  Uut  knowing  it 
would  not  be  necessary  to  sell  his  real  estate  for  that  pur- 
pose, nor  to  break  in  upon  the  specific  legacies  which  he 
had  made  to  his  children,  he  declares  that  the  revenues 
shall  be  used  for  that  purpose,  together  with  such  other 
appropriations  as  he  makes.  The  word  "  appropriations  " 
is  significant.  It  evinces  the  intention  of  the  testator  to 
designate  and  set  it  apart  from  his  other  property  for  a 
specific  object.  The  word  means  a  designation  to  a  par- 
ticular exclusive  use.  He  orders  his  blood  horses  to  be 
sold,  and  certain  obligations  to  be  collected  with  all  pos- 
sible dispatch,  to  constitute  a  fund  in  the  hands  of  his  ex- 
ecutors to  pay  his  debts.  It  cannot  be  that  he  meant  the 
"  revenues  of  his  estate  as  the  primary  fund,"  and  this 
fund,  thus  "  eir-marked,"  as  it  were,  and  "  appropriated  " 
to  the  very  o'./ject,  to  be  a  secondary  or  auxiliary  fund. 
The  revenues  of  the  estate  are  sufficient  to  pay  the  debts 
without  the  aid  of  the  appropriations  in  the  second,  fifth, 
and  twelfth  items  of  the  will.  Did  the  testator  ever  con- 
template such  a  result  as  that  these  appropriations  should 
never  be  used  for  this  object  ?  It  is  quite  as  clear  he  could 
not  have  meant  the,  two  funds  as  a  common  fund  to  pay 
the  debts.  What  proportion  of  the  burthen  was  each 
fund  to  bear,  and  at  what  period  was  the  account  to  be 
taken  ?  I,  think,  too,  the  intention  of  the  testator  is  clear 
from  another  circumstance.  He  manifested  a  great  anx- 
iety to  have  his  debts  paid  speedily.  The  fund  created  by 
the  third,  fifth,  and  twelfth  items  of  his  will  was  a  cer- 
tain fund  in  the  hands  of  his  executors  immediately  upon 
their  assuming  the  duties  of  their  office.  It  was  a  fund 
which  appropriately  belonged  to  the  executors,  in  their 
character  as  personal  representatives  of  the  testator.  Not 
so  with  the  rents  and  profits  of  the  realty,  which  consti- 
tuted the  bulk  of  the  "  revenue  "  of  the  estate.  They  did 


236  CASES  IN  CHANCERY. 

Whitehead  o.  Gibbons. 

not  pass  into  the  hands  of  the  executors  ratione  officii. 
They  had  no  authority  to  collect  them,  except  by  the  ex- 
press or  implied  authority  conferred  upon  them  by  the 
will.  The  will  gives  no  express  authority.  It  is  only  by 
implication  that  the  executors  possess  it.  The  testator  hav- 
ing authorized  the  rents  to  be  appropriated,  under  cer- 
tain circumstances,  to  pay  his  debts,  and  the  duty  of  pay- 
ing his  debts  devolving  upon  his  executors,  by  implica- 
tion, they  are  clothed  with  power  to  collect  the  rents. 
Sugden  on  Powers  133, 134 ;  Chambers'  executor  v.  Tulane, 
1  /Stockton's  7?.  146.  The  fact,  that  the  testator  expressed 
a  great  anxiety  to  have  his  debts  speedily  paid ;  that  of 
the  two  funds  charged  with  this  burthen,  one  was  a  cer- 
tain fund  in  the  hands  of  his  executors  available  at  once, 
the  other  not  belonging  to  them  appropriately  as  execu- 
tors, and  the  testator  conferring  upon  them  -  no  express 
authority  to  obtain  possession  of  it,  all  these  considera- 
tions are  of  importance,  as  showing  that  the  testator's 
mind  was  not  upon  the  revenue  of  his  estate  as  the  pri- 
mary fund  for  the  payment  of  his  debts.  To  determine 
that  such  was  his  intention  would  mar  the  prominent 
feature  in  his  will,  his  determination  to  have  his  debts 
speedily  paid;  it  would  embarrass  the  very  object  which 
seemed  to  swallow  up  all  others  in  contemplation  of  the 
testator. 

To  my  mind,  the  intention  of  the  testator  is  clearly  ex- 
pressed upon  the  face  of  the  will,  that  the  property  enu- 
merated in  the  third,  fifth,  and  twelfth  items  should  con- 
stitute the  primary  fund  to  pay  his  debts.  But  if  there  is 
an  absence  of  intention  as  to  what  part  of  his  estate  shall 
constitute  the  primary  fund,  upon  well  settled  principles 
of  law,  the  property  named  in  these  several  items  is  the 
appropriate  and  primary  fund  for  that  object. 

It  is  a  settled  rule,  that  the  personal  estate  is  the  prima- 
ry fund  to  pay  the  debts,  and  that  it  is  not  relieved  from 
this  burthen  by  the  debts,  in  express  terms,  being  charged 
upon  the  realty ;  and  that  wherein  it  is  aided  either  by  a 


OCTOBER  TERM,  1854.  237 


WMtehead  c.  Gibbons. 


legal  or  an  equitable  fund,  it  must  be  itself  in  the  first 
place  applied.     1  Bro,  0.  C.  ±§±per  Lord  Thurlow. 

This  rule  is  within  the  control  of  the  testator,  and  is 
not  applicable  where  his  intention  to  the  contrary  is  either 
expressed  or  clearly  implied.  That  intention  must  not  be 
simply  to  charge  the  realty,  but  to  exonerate  the  person- 
alty. 

The  case  of  Lord  Inchiqnin  against  French  and  others 
(Ambl.  Rep.  33)  has  some  points  very  similar  to  the  present 
one.  I  will  only  quote  from  the  opinion  of  Lord  Hard- 
wicke,  to  show  how  tenaciously  he  adhered  to  the  prin- 
ciple of  appropriating  the  personal  estate  as  the  first  fund 
for  the  payment  of  debts.  "  The  general  rule  of  law  and 
equity  is,  that  the  personal  estate  is  the  first  fund  for  pay- 
ment of  debts  ;  and  as  to  proper  legacies,  it  is  considered 
as  the  only  fund,  both  in  the  ecclesiastical  and  in  this 
court  :  if,  therefore,  the  personal  estate  is  to  be  exempted 
from  these  charges,  it  must  be  so  expressed,  or  it  must  ap- 
pear from  a  plain  necessary  implication  arising  from  the 
words  of  the  testator  ;  and  in  such  case,  if  an  implication 
or  plain  intention  without  express  words,  it  must  appear 
that  the  personal  estate  is  given  as  a  specific  bequest  in 
some  shape." 

It  is  another  rule  as  well  settled,  that  personal  property 
not  specially  bequeathed  must  be  applied  before  specific 
legacies.  Both  these  rules  are  violated  if  the  revenue  of 
the  testator's  estate  is  taken  as  the  primary  fund  for  tho 
payment  of  his  debts. 

The  fund  specified  in  the  "  second  item"  of  the  will  is 
derived  from  the  rents  and  the  protfis  of  the  realty,  which  ia 
specifically  devised,  and  from  interest  accumulating  from 
personalty  specifically  bequeathed.  The  presemption  of 
law  is,  that  the  purpose  of  the  testator  in  thus  disposing  of 
his  property  by  specific  devises  and  bequests  is  that  his 
gifts  should  not  be  defeated. 

It  was  argued  by  the  counsel  of  exceptants,  that  the 
third,  fifth,  and  twelfth  items  of  the  will  are  specific  lega- 


238  CASES  IN  CIIANCEEY. 

Whitehead  v.  Gibbons. 

cies  in  favor  of  the  four  children  chargeable  with  the  pay- 
ment of  debts.  Was  this  really  the  intention  of  the 
testator  ?  "Were  those  items  induced  by  the  consideration 
of  his  children  being  the  objects  of  his  bounty  or  by  a 
desire  to  make  provisions  for  the  payment  of  his  debts  ? 
"When  he  ordered  his  blood  horses  to  be  sold,  was  it  for  the 
purpose  of  creating  a  fund  to  divide  among  his  chil- 
dren or  to  create  a  fund  to  pay  his  debts  ?  He  had  given  all 
his  other  property,  real  and  personal,  to  these  same 
children,  charged  with  the  payment  of  his  debts  ;  but  he 
selected  out  of  his  whole  estate  the  specific  property  men- 
tioned in  the  third,  fifth  and  twelfth  items  of  his  will, 
and  orders  that  it  shall  be  applied  to  the  payment  of  his 
debts,  and  "  any  surplus  that  may  appear"  be  divided 
among  his  children.  This  is  a  specific  bequest  for  the 
payment  of  his  debts  with  the  residue,  if  any,  to  his  chil- 
dren, and  not  a  specific  legacy  to  his  children  of  property 
charged  with  the  payment  of  debts.  Their  specific  inter- 
est is  in  what  is  left  after  the  debts  are  paid,  and  not  in 
the  property  subject  to  the  debts.  The  appropriations  of 
the  fund  to  pay  the  debts  was  the  primary  and  principal 
object  of  the  bequest  ;  the  distribution  of  the  residue  was 
but  secondary  and  incidental. 

The  first  exception  is  not  well  taken,  and  must  be  over- 
ruled. 

The  second  exception  is,  "  For  that  the  said  master  has 
reported  that  the  surplus  of  the  general  revenues  of  the 
estate,  after  the  payment  of  debts,  should  be  distributed 
among  the  respective  devisees,  in  the  proportion  in  which 
they  were  received  from  their  respective  real  estate  de- 
vised to  them  in  the  will  of  the  testator ;  whereas  the 
:  testator,  by  his  said  will,  directs  the  said  surplus  to  be 
,  distributed  among  his  four  children  equally." 

It  is  argued  that  this  surplus  is,  by  the  twelfth  item  of 
•  the  will,  ordered  to  be  distributed  equally  among  the  chil- 
dren ;  or  if  not,  then  that  the  testator  died  intestate  as  to 
this  surplus,  in  which  case  the  same  result  would  follow. 


OCTOBER  TERM,  1854.  239 


Whitehead  r.  Gibbons. 


I  Lave  already  remarked,  that  the  testator  did  not  intend 
to  die  intestate  as  to  any  of  his  property.  This  is  very 
manifest  from  every  part  of  his  will.  And  I  think  it  is 
clear  that  he  intended,  in  the  residuary  clause,  to  embrace 
everything  he  had  a  right  to  dispose  of  not  specifically 
disposed  of  in  his  will.  His  language  is,  "  All  the  rest 
and  residue  of  my  estate,  real  and  personal  and  mixed, 
wherever  it  may  be  situated  or  found,  that  I  may  die  pos- 
sessed of,  not  hereinbefore  enumerated,  provided  for, 
given,  &c,,  I  do  hereby  give,  tfec.,  to  my  son  William." 
The  argument  is,  that  he  did  not  die  possessed  of  the  rents 
of  his  real  estate  and  the  interest  on  the  obligations  he 
held,  which  accrued  after  liis  decease.  In  construing  a 
will,  we  are  not  to  put  a  technical  definition  upon  a  word, 
or  make  of  it  a  technical  application,  in  order  to  control 
the  disposition  the  testator  has  made  of  his  property,  but 
we  are  to  look  at  the  context  to  ascertain  the  testator's  in- 
tention, and  give  effect  to  that  without  any  regard  to  the 
mere  phraseology  he  has  made  use  of.  Looking  at  the 
whole  will,  I  am  satisfied  that  it  was  the  intention  of  the 
testator  that  this  residuary  clause  should  embrace  every- 
thing he  had  a  right  to  dispose  of  not  specifically  devised 
or  bequeathed,  and  that  if  this  surplus  is  not  specifically, 
disposed  of,  it  passes  under  the  residuary  clause  to  William 
II.  Gibbons,  the  testator's  son. 

It  is  further  argued,  that  this  surplus  is  specifically  dis- 
posed of  in  the  twelfth  item  of  the  will.  By  this  item, 
the  testator,  after  directing  certain  specific  property  to  be 
applied,  first  to  the  payment  of  his  debts,  then  of  his  fn- 
neral  expenses,  then  of  the  current  temporary  expenses 
of  his  children  for  a  certain  period,  directs  that  any  bal- 
ance remaining  shall  go  into  his  general  extate,  and  be  di- 
vided equally  between  his  four  children.  It  is  true  we 
would  naturally  conclude,  from  this  phraseology,  that  the 
testator  had  directed  his  general  estate  to  be  equally  di- 
vided between  his  children  ;  but,  in  looking  at  the  context, 
we  find  no  such  disposition  :  and  then  the  question  arises, 


240  CASES  IN  CHANCERY. 

Whitehead  v.  Gibbons. 

what  did  the  testator  mean  by  his  general  estate,  and  had 
lie  made  any  disposition  of  it  ?  If  he  had,  no  presump- 
tion to  the  contrary  can  arise,  by  mere  implication,  from 
the  language  referred  to.  If  the  views  I  have  before  ex- 
pressed, that  the  testator  had  specifically  disposed  of  his 
whole  estate,  with  a  residuary  clause  simply  to  provide 
for  any  casual  omission,  this  language  cannot  alter  the 
specific  disposition  he  had  made  of  his  property.  But  it 
is  said  that  the  "  general  revenues  "  derived  from  his  es- 
tate, mentioned  in  the  second  item  of  the  will,  constituted 
the  testator's  "general  estate,"  and  although  it  was  pro- 
ceeds and  interest  of  real  and  personal  estate  specifically 
devised  and  bequeathed,  the  testator  did  not  intend  it 
should  go  to  the  devisees  and  legatees,  from  the  fact  that 
he  devissd  to  them  the  realty  and  personalty  out  of  which 
it  was  derived,  because  he  declared  that  no  devise  or  be- 
quest should  take  effect  until  all  his  debts  were  paid ;  that 
his  revenue  had  accumulated  in  the  hands  of  the  execu- 
tors b3fora  the  debts  were  paid,  and  consequently  before 
any  devise  or  baquest  took  effect.  This  brings  us  back  to 
the  first  question  we  considered,  whether  the  testator 
meant  anything  niDre  than  to  charge  the  devises  and  lega- 
cies with  ths  payment  of  his  debts,  and  to  make  the  reve- 
nues derived  from  them  an  auxiliary  fund  to  the  specific 
personal  prop3rty  appropriated  for  his  debts.  I  have  be- 
fore stated  it  as  my  opinion,  that  it  was  the  intention  of 
the  testator  that  the  deviseas  and  legatees  should  take 
their  estates  and  legacies  without  diminution,  except  so 
far  as  it  was  necessary  to  appropriate  these  proceeds  to  the 
payment  of  his  debts  in  aid  of  other  funds  provided  for 
the  purpose.  I  think  the  master  was  correct  in  the  prin- 
ciple he  adopted,  and  that  the  second  exception  to  his  re- 
port is  not  well  taken. 

As  to  the  third,  fourth,  fifth,  sixth,  seventh,  and  eighth 
exceptions,  if  they  are  true  in  point  of  fact,  that  is  if  the 
master  has  stated  the  accounts  in  the  manner  as  alleged 
fcy  those  exceptions,  then  they  are  well  taken.  They 


OCTOBER  TERM,  1854. 


Whitehead  v.  Gibbons. 


involve  the  question,  as  to  what  burthen  the  revenues  of  the 
estate  in  the  hands  of  the  executor  derived  from  the  pro- 
ceeds of  real  estate  specifically  bequeathed  should  bear,  and 
in  what  proportion  they  should  be  charged  ? 

There  is  some  embarrassment  arising  from  the  fact  of 
the  incompleteness  of  the  master's  report.  The  object  of 
the  bill  is  a  final  settlement  of  the  estate  of  the  testator,  to 
adjust  all  the  rights  of  every  person  in  any  way  interested 
in  the  estate,  and  the  final  settlement  of  those  rights. 
The  four  children  of  William  Gibbons  are  the  only  devisees 
and  legatees  of  the  will.  The  real  and  personal  estate 
were  devised  and  bequeathed  to  them  in  different  pro- 
portions. From  the  peculiarities  of  the  will,  the  rents 
of  the  real  estate  and  interest  money  arising  out  of  specific 
legacies  have  come  into  the  hands  of  the  executors.  The 
object  of  the  bill  is  not  simply  to  ascertain  the  receipts 
and  expenditures  and  the  balance  in  their  hands  to  be 
distributed,  but  to  settle  the  accounts  between  the  ex- 
ecutors and  the  children  ;  to  ascertain  the  balance  due  them, 
respectively,  from  the  executors,  and  to  decree  the  pay- 
ment of  such  balance.  The  master  has  not  stated  these 
accounts.  Upon  his  report  a  final  decree  cannot  be  made 
definitely  settling  the  rights  of  all  the  parties.  The  report 
should  come  to  the  court  in  such  a  shape  that  it  may  see 
how  much  money  is  in  the  hands  of  the  executors  be- 
longing to  each  of  the  children,  and  may  make  a  decree 
in  their  behalf  accordingly.  The  court  will  not  make  a 
decree  in  this  cause  which  leaves  the  children  in  a  situa- 
tion which  may  possibly  compel  them  to  institute  a  fur- 
ther suit  to  ascertain  and  recover  what  is  respectively  due 
them. 

I  shall  refer  the  report  back  to  the  master,  to  state  an 
account  between  the  executors  and  each  of  the  children, 
with  directions  to  charge  the  repairs,  taxes,  insurance,  and 
every  other  expense  incidental  to  any  particular  estate, 
to  the  devisees  of  such  estate ;  and  in  their  account  with 
each  child,  to  charge  the  executors  with  such  part  or  pro- 


242  CASES  IN  CHANCEKY. 

Whitehead  ».  Gibbons. 

proportion  of  the  revenues  in  their  hands  as  have  been  de- 
rived from  the  estate  or  property  specifically  devised  or  be- 
queathed to  such  child. 

As  to  the  "  eighth  "  exception,  it  was  understood,  at  the 
argument,  that  the  matter  of  that  exception  had  been  ad- 
justed. 

The  "  ninth  "  and  "  tenth  "  exceptions  are  waived. 

The  "  eleventh  "  exception  is  not  well  taken  as  to  the 
principle  settled  by  the  master,  if  the  views  I  have  ex- 
pressed in  reference  to  the  construction  of  the  will,  and 
the  directions  I  have  given  to  the  master  as  to  stating  the 
accounts  with  the  devisees,  are  correct;  but  I  think  the 
master  erred  in  determining  that  the  principal  money  was 
to  be  distributed  among  the  children  of  the  testator. 

The  "  twelfth  "  exception  relates  to  the  amount  of  com- 
missions allowed  the  executor.  I  see  no  reason  for  inter- 
fering with  the  master's  judgment  in  this  particular.  The 
exception  was  not  pressed  at  the  argument,  and  is  not 
allowed. 

Exceptions  to  the  master's  report  were  also  filed  on  behalf 
of  the  executors.  The  only  one  of  consequence  relates 
to  the  Tainter  annuity.  The  only  difficulty  appears  to 
be  as  to  facts,  which,  since  the  master's  report,  have  become 
batter  understood  by  the  parties.  These  exceptions  are 
referred  to  the  master  with  the  report,  that  he  may 
look  further  into  the  facts  which  have  given  rise  to 
the  exception,  and  report  accordingly.  According  to  my 
understanding  of  the  facts  before  the  master,  I  think  the 

O  .  J 

exception  well  taken.  I  intend,  however,  by  the  reference 
to  leave  it  an  open  question  for  the  master. 


OCTOBER  TERM,  1854.  243 


Fisler  v.  Porch. 


FISLER,   administrator  with  the  will   annexed  of 
JAMES  ABBOTT,  deceased,  vs.  SAMUEL  PORCH,  jun. 

Although  the  general  rule  is,  that  the  answer  of  a  defendant,  so  far  as  it  is 
responsive  to  the  bill,  is  evidence  for  the  party,  it  is  no  evidence  when  it 
asserts  a  right  affirmatively  in  opposition  to  the  complainant's  demand. 

So  whfe.-e  the  defendant  was  called  upon  to  disclose  what  consideration  he 
paid  ior  the  assignment  of  a  mortgage,  and  answered  that  he  paid  no  con- 
sideration at  the  time,  but  merely  promised  that  he  would  make  certain 
payments  and  perform  certain  duties  at  a  future  time,  his  allegation,  that 
he  has  performed  his  promise  cannot  avail  him  ;  he  is  bound  to  establish 
the  fact  by  proof. 

The  fact  as  to  whether  the  assignment  was  intended  as  an  absolute  one,  or 
as  a  mere  authority  to  enable  the  defendant  to  collect,  being  doubtful  from 
the  evidence,  the  court  directed  an  issue. 


Tue  bill  alleges,  that  James  Abbott,  deceased,  was  at 
the  time  of  his  death  the  owner  of  a  bond  and  mortgage 
of  John  G.  Baker,  to  secure  the  payment  of  $3000,  which 
said  Baker  had  given  him  as  the  consideration  of  a  farm 
sold  and  conveyed  by  Abbott  to  Baker.  The  bond  is 
dated  29th  September,  1849,  and  payable,  $500  in  one 
year  from  date,  $500  in  two  years  from  the  date  thereof, 
$1000  in  three  years  from  date  thereof,  and  $1000  in  four 
years  from  the  date  thereof,  without  any  interest  for  one 
year  from  the  date;  that  the  said  Abbott,  being  then 
about  eighty-six  years  old,  and  very  infirm,  and  unable  to 
transact  business  for  himself,  and  having  no  means  of 
support,  except  what  was  to  be  derived  from  the  said 
bond  and  mortgage,  proposed  to  his  grandson,  the  de- 
fendant, to  employ  him  as  his  agent  to  collect  the  money 
of  the  said  obligee  as  it  become  due  upon  the  bond,  and 
to  pay  it  to  him,  to  which  the  defendant  assented,  and 
suggested  to  the  said  James  Abbott,  that  in  order  to  ena- 
ble him  effectually  to  collect  the  money,  it  was  necessary 
that  the  said  James  Abbott  should  assign  the  said  bond 
and  mortgage  to  him,  and  the  said  James,  believing  the 


244  CASES  IN  CHANCERY. 

Fisler  v.  Porch. 

said  suggestion  to  be  made  in  good  faith,  and  confiding 
in  the  integrity  pf  the  defendant,  in  order  to  confer  upon 
him  the  necessary  authority,  on  or  about  the  12th  day  of 
June,  1850,  procured  to  be  endorsed  on  the  said  oond  as 
follows : 

"June  12th,  1850,  I  sine  all  my  rite  and  title  of  the 
within  bond  to  Samuel  Porch,  jr." 

nis 

Witness  present,  JAMES    £xj  ABBOTT. 

mark. 

Prudence  DeHart. 

and  delivered  the  bond  to  the  defendant ;  that  at  the  same 
time,  the  defendant  procured  an  endorsement  to  be  put  on 
the  mortgage,  and  delivered  the  mortgage  to  defendant. 

The  bill  further  alleges,  that  by  virtue  of  the  said 
assignment,  the  said  defendant  now  sets  up  and  claims 
to  be  the  sole  lawful  owner  in  his  own  right  of  the  said 
bond  and  mortgage,  and  charges  that  the  said  assign- 
ments were  only  made  to  enable  the  defendants  to  collect 
the  money ;  that  they  were  voluntary,  and  without  any 
valuable  consideration  really  and  J)ona  fide  paid  by  the 
said  defendant ;  that  James  Abbott  departed  this  life  in 
1851,  having  first  duly  made  his  will,  bearing  date  the 
13th  day  of  September,  1849,  in  which,  after  ordering  his 
debts  paid  and  a  few  legacies,  he  orders  a  division  of  his 
property  among  his  wife,  his  two  sons,  and  his  four  daugh- 
ters ;  that  John  Harding,  who  was  appointed  executor, 
having  renounced,  letters  of  administration  with  the  will 
annexed  were,  on  the  6th  of  November,  1852,  granted  to 
the  complainant. 

The  bill  further  charges,  that  the  complainant  has  de- 
manded the  bond  and  mortgage  of  the  defendant,  and 
requested  him  to  come  to  a  settlement  in  relation  to  the 
said  trust,  but  that  he  refuses,  and  claims  the  money  as 
his  own.  It  prays  that  the  defendant  may  be  enjoined 
from  collecting  the  money ;  that  the  defendant  may  be 
decreed  to  account,  and  to  assign  and  deliver  to  the  com- 


OCTOBER  TERM,  1854.  245 


Fisler  v.  Porch. 


plainant  a  judgment  which  he  has  obtained  upon  the  bond 
against  the  obligor,  after  a  payment  to  him  of  any  sum 
which  may  be  found  due  and  owing  to  the  said  defend- 
ant ;  that  the  rights  of  the  complainant,  as  administrator, 
may  be  established  in  the  premises,  protected  and  en- 
forced, and  that  the  complainant  may  have  such  other  and 
further  relief,  &c. 

The  defendant  filed  his  answer  to  the  bill.  He  admits 
that  the  bond  and  mortgage  was  assigned  to  him  by 
James  Abbott ;  that  at  the  time  he  was  an  aged  man ;  thai 
he  was  at  that  time  somewhat  infirm  in  body,  but  denies 
that  said  Abbott  could  proparly  be  said  to  be  very  infirm  ; 
lie  denies  that  said  Abbott  was  unable  to  transact  busi- 
ness, but,  on  the  contrary,  alleges  that  said  Abbott  not 
only  at  the  time  he  assigned  the  bond  and  mortgage,  but 
from  thence  up  to  within  some  five  or  six  months  of  his 
decease,  nearly  two  years,  was  of  ordinary  bodily  strength 
for  a  man  of  his  years,  and  possessed  his  mental  faculties 
to  an  unusual  extent,  and  was  able  to  transact  business. 
The  defendant  denies  that  the  assignment  of  said  bond 
and  mortgage  was  without  consideration,  or  for  the  mere 
purpose  of  enabling  the  defendant  to  collect  the  same,  or 
upon  the  suggestion  of  the  defendants,  or  in  any  other 
way  or  purpose  than  as  an  absolute  and  full  assignment 
to  the  defendant,  for  his  own  use  and  benefit,  and  for  no 
other  use  or  purpose  whatsoever.  He  avers  and  states 
the  truth  to  be,  that  the  said  bond  and  mortgage  were  as- 
signed to  this  defendant  under  the  following  circumstances : 
that  for  about  one  year  next  before  the  execution  of  the 
said  bond  and  mortgage,  the  said  James  Abbott  had  been 
boarding  with  and  in  the  family  of  said  John  G.  Baker, 
whose  wife  was  a  grand  daughter  of  said  Abbott ;  that 
while  the  said  Abbott  was  boarding  with  said  Baker,  ho 
conveyed  the  farm  to  said  Baker,  and  took  the  said  bond 
and  mortgage  for  the  whole  amount  of  the  purchase  mo 
ney ;  that  some  time  after  the  said  conveyance,  the  said 
Baker  refused  to  board  the  said  James  any  longer,  so  that 

x* 


246  CASES  IN  CHANCEKY. 

Fisler  t\  Porch. 

he  was  obliged  to  seek  and  obtain  a  home  with  his  daugh- 
ter, Prudence  DeHart,  who  was  a  widow  lady  and  in  poor 
circumstances,  unable  to  afford  proper  and  adequate  sus- 
tenance to  him ;  that  while  he  was  living  with  his  said 
daughter,  the  defendant  took  his  mother '  (who  is  also  a 
daughter  of  said  James)  to  visit  her  father ;  that  the  cir- 
cumstances under  which  the  said  James  was  obliged  to 
leave  the  said  Baker  becoming  the  subject  of  conversation, 
the  said  James  proposed  to  the  defendant,  in  the  presence 
^>f  his  two  daughters,  that  if  the  defendant  would  provide  for 
the  said  James  for  the  residue  of  his  life,  and  would  pay 
such  debts  and  liabilities  as  were  then  outstanding  against 
him,  and  would  pay  off  and  discharge  the  expenses  of  his 
burial  after  death,  that  he,  the  said  James,  would  assign 
to  the  defendants  the  said  bond  and  mortgage,  which  pro- 
position the  defendant  in  good  faith  and  with  good  and 
proper  intentions  accepted,  and  thereupon  and  on  the 
same  the  assignment  was  made.  The  defendant  alleges 
in  his  answer,  that  from  the  time  of  the  assignment  to 
the  time  of  the  death  of  said  Abbott,  he,  the  defendant, 
provided  for  him  suitable  and  sufficient  board,  clothing, 
and  other  necessaries  and  comforts  of  life,  and  paid  off  and 
discharged  sundry  debts  and  liabilities  of  the  said  James 
Abbott,  and  is  now  ready  and  willing,  and  at  all  times 
has  been  ready  and  willing,  to  pay  off  and  discharge  any 
other  debts  and  liabilities  of  the  said  James  Abbott  (if 
any  there  be) ;  and  also  paid  off  and  discharged  all  the  ex- 
penses of  his  funeral,  and  has,  in  all  other  respects,  kept 
and  performed  the  said  agreement  on  the  part  of  him,  the 
defendant. 

The  answer  admits  that  James  Abbott  made  the  will 
dated  prior  to  the  assignment,  but  alleges  that,  after  mak- 
ing the  said  assignment,  having  no  property,  he  desired 
and  intended  to  destroy  the  will,  and  for  that  purpose,  on 
the  Tth  of  April,  1851,  said  Abbott  executed  an  order 
upon  John  Harding,  who  had  the  custody  of  the  will,  as 
follows : 


OCTOBER  TEEM,  1854.  247 


Fisler  v.  Porch 


To  Mr.  John  Harden.  Please  to  let  the  bearer  have 
that  will  of  mine  in  your  possession,  as  I  have  made 
some  other  alteration,  and  I  do  not  wish  that  will  to  have 
any  effect.  Yours  with  respect, 

his 

Witness  present,  JAMES    ><j  ABBOTT. 

mark. 

Samuel  Porch. 
April  7,  1851. 

That  the  said  order  was  delivered  to  one  Jacob  DeHart, 
his  son  in  law  to  present  Harding  ;  that  he  did  pres- 
ent it,  and  that  Harding  refused  to  let  him  have  the 
will. 

A  replication  was  filed,  and  considerable  evidence  taken 
on  both  sides. 

THE  CHANCELLOR.  The  gravamen  of  the  bill  is,  that  the 
assignment  by  James  Abbott  to  the  defendant  of  the  bond 
and  mortgage  of  John  G.  Baker  was  without  considera- 
tion, and  intended  as  a  power  of  attorney  only,  in  order 
to  authorize  the  defendant  to  collect  the  money  due  on  the 
bond. 

Considerable  evidence  was  taken  to  show  the  imbecility 
of  the  old  man  ;  and,  upon  the  argument,  the  defendant's 
counsel  endeavored  to  establish,  from  this  evidence,  that 
James  Abbott,  at  the  time  he  made  the  assignment,  was 
so  infirm  in  body  and  mind  as  to  render  him  incompetent 
in  law  to  dispose  of  his  property.  But  this  case  cannot  be 
determined  upon  the  question  of  James  Abbott's  legal 
competency  to  transact  business.  The  evidence,  so  far  as 
it  has  been  introduced'  for  such  purpose,  is  irrelevant.  No 
such  issue  has  been  made  by  the  pleadings,  and  of  course 
none  such  is  before  the  court  for  its  determination.  The 
bill  does  indeed  allege  that,  James  Abbott  was  an  old 
man,  being  at  the  time  of  the  assignment  about  eighty 
six  years  of  age,  very  infirm,  and  unable  to  transact  busi- 


248  CASES  IN  CHANCERY. 

Fisler  v.  Porch. 

ness.  But  it  does  not  allege  this  as  a  reason  for  disaffirm- 
ing the  contract  ;  on  the  contrary,  it  is  stated  as  the  rea- 
sonable inducement  which  prompted  him  to  constitute 
the  defendant  his  agent,  with  authority  to  enforce  the 
payment  of  the  obligation. 

The  only  question,  therefore,  for  the  decision  of  the 
court  is,  whether  the  assignment  conveyed  to  the  defend- 
ant, as  the  absolute  owner,  the  interest  of  the  obligee  in 
the  bond,  or  was  intended  by  the  parties  as  a  mere  au- 
thority and  power  to  collect  the  money  due  upon  it  ?  The 
defendant  is  called  upon  to  disclose  the  character  of  the 
transaction  and  the  consideration  which  passed  from  him 
to  James  Abbott  for  the  assignment. 

The  defendant,  by  his  answer,  denies  that  the  assign- 
ment was  without  consideration,  or  made  to  him  as  the 
mere  agent  of  James  Abbott  to  collect  the  money  due 
upon  the  bond,  or  in  any  other  way  or"  for  any  other  pur- 
pose than  as  an  absolute  and  full  assignment  for  the  de- 
fendant's own  use  and  benefit.  He  admits  that  no  con- 
sideration was  given  by  him  at  the  time,  but  avers  the 
time  consideration  to  have  been  a  mere  parol  agreement 
on  his  part  to  provide  for  James  Abbott  during  his  life- 
time, to  pay  such  debts  and  liabilities  as  were  then  out- 
standing against  him,  and  to  discharge  the  expenses  of 
his  burial.  He  avers  that  he  has  paid  the  consideration  ; 
that  from  the  time  of  the  assignment  up  to  the  time  of 
the  death  of  Abbott,  he  provided  for  him  suitable  and 
sufficient  board,  clothing,  and  other  necessaries  and  com- 
forts of  life,  and  paid  off  and  discharged  sundry  debts 
and  liabilities,  and  also  paid  the  expenses  of  his  burial, 
and  that  he  has  fully  discharged  the  consideration,  as  he 
agreed  and  assumed. 

The  first  question  is,  how  far  is  this  answer  evidence 
for  the  defendant  ?  The  general  rule  is,  that  the  answer 
of  a  defendant,  so  far  as  it  is  responsive  to  the  bill,  is  evi- 
dence for  the  party.  This  is  the  rule  as  broadly  stated, 
but  it  has  its  limits  and  its  exceptions.  It  is  no  evidence 


OCTOBER  TEEM,  1854.  249 


Fisler  r.  Porch. 


•where  it  asserts  a  right  affirmatively  in  opposition  to  the 
complainant's  demands.  In  this  case,  the  defendant  is 
called  upon  to  disclose  what  consideration  he  paid  for  the 
assignment.  If  his  answer  had  been,  that  he  paid  the 
amount  of  the  principal  and  interest  due  on  the  bond  at 
the  time  of  the  assignment,  his  answer  would  be  evidence 
of  the  fact,  and  the  court  would  not  put  him  to  the  proof. 
But  he  answers,  he  paid  no  consideration  at  the  time,  but 
merely  promised  that  he  would  make  certain  payments 
and  perform  certain  duties  at  a  future  time.  His  allegation, 
that  he  has  psrformad  his  promise,  cannot  avail  him. 
He  is  bound  to  establish  the  fact  by  proof.  In  Thomson  v. 
Zambe,  7  Ves.  587,  Lord  Eldon  says,  "  he  was  clearly  of 
opinion,  a  person  charged  by  his  answer  cannot,  by  his 
answer,  discharge  himself,  not  even  by  his  examination, 
(before  the  master)  unless  it  is  in  this  way :  if  the  answer 
or  examination  states  that,  upDn  a  particular  day,  he  re- 
ceived a  sum  of  money,  and  paid  it  over,  that  may  dis- 
charge him  ;  but  if  hs  says,  that  upon  a  particular  day  he 
received  a  sum  of  money,  and  upon  a  subsequent  day  he 
paid  it  over,  that  cannot  be  used  in  his  discharge,  for  it  is 
a  different  transaction."  In  ffuichimon  v.  TindaU,  2  Green's 
C.  R.  357,  and  in  Hart  v.  Ten  Eyck,  2  J.  C.  R.  62,  and  in 
a  note  to  the  last  case,  91,  the  numerous  authorities  upon 
this  subject  will  be  found  collected  and  commented  upon. 
I  think  the  current  of  these  authorities  will  be  found  to 
accord  with  the  views  I  have  expressed  in  regard  to  the  an- 
swer in  the  present  case. 

Let  ns  examine,  then,  the  case  upon  the  evidence.  The 
defendant  has,  in  the  first  place,  endeavored  to  prove  the 
agreement  between  Abbott  and  himself,  as  to  the  assign- 

o  /  o 

ment.  Two  witnesses  were  present,  as  he  alleges,  at  the 
time  it  was  made,  Prudence  Dellart,  a  daughter  of  Ab- 
bott, and  who  is  the  subscribing  witness  to  the  assign- 
ment, and  the  defendant's  mother,  also  a  daughter  of 
Abbott. 
Prudence  DeTTart  testifies  she  subscribed  the  assignment 


250  CASES  IN  CHANCERY. 


Fisler  v.  Porch. 


as  a  witness.  She  does  not  recollect  hearing  her  father 
say,  at  the  time  of  the  assignment,  what  the  defendant 
was  to  do,  or  give  for  the  bond.  Her  father  told  her  that 
Samuel  would  pay  his  board,  and  that  whatever  he  broke 
or  destroyed  while  there  Samuel  would  pay  for  it.  This 
witness  certainly  fails  to  prove  the  agreement  alleged  in 
the  answer.  His  telling  her  that  Samuel  would  pay  his 
board,  &c.,  is  quite  as  consistent,  and  indeed  more  so, 
with  the  allegation  of  the  bill,  that  the  bond  was  assigned 
merely  to  enable  the  defendant  to  collect  the  money  to 
make  the  payment,  as  with  the  allegation  of  the  answer, 
that  such  payment- was  a  part  consideration  for  the  abso- 
lute assignment  of  the  bond.  It  certainly  is  very  strange 


scribing  witness  to  the  instrument  by  which  her  father 
conveyed  away  all  the  property  he  had  in  the  world,  and 
that  a  bond  and  mortgage  of  $3000,  and  yet,  that  this 
daughter  should  not  know,  if  it  was  meant  as  an  absolute 
transfer  of  his  property,  what  consideration  he  received 
for  it.  She  says  she  did  not  hear  all  the  conversation  ;  but 
this  does  not  account  for  the  strange  fact,  that  this  bond 
should  be  assigned  under  the  circumstances,  and  that  she 
should  have  witnessed  the  assignment,  and  not  have  un- 
derstood from  the  parties  what  the  consideration  was,  and 
particularly,  as  there  is  no  pretence  that  the  transaction 
was  a  secret  one,  nor  any  disposition  in  either  of  the  par- 
ties to  conceal  its  true  character  from  the  witness.  It  is 
quite  as  strange  that  James  Abbott  should  have  continued 
to  live  with  this  daughter  for  more  than  a  year  after  this, 
and  that  she  should  never  have  heard  from  her  father 
upon  what  terms  he  had  disposed  of  his  property.  The 
witness,  however,  says,  that  she  did  hear  her  father  say 
often  that  he  had  no  property,  for  he  had  assigned  it  all 
to  Samuel  Porch.  I  do  not  mean  to  intimate  that  this  wit- 
ness has  concealed  anything  in  her  testimony.  She  was 
called  as  a  witness  for  the  defendant  against  her  own  in- 
erest.  If  this  assignment  should  be  declared  not  to  be 


OCTOBER  TEEM,  1854  251 


Fisler  v.  Porch. 


an  absolute  assignment,  she  takes  under  the  will  of  her 
father  an  equal  share  with  other  legatees  named  in  the  will 
of  the  money  due  upon  the  bond  in  dispute. 

Edith  DeHart,  the  mother  of  the  defendant,  is  the  other 
witness  alleged  to  have  been  present  at  the  time  of  the  as- 
signment. She  testifies  that  she  went  with  her  son  to  see 
her  father,  then  living  with  his  daughter,  Prudence  De- 
Hart;  that  she  then  had  in  her  possession  the  bond  in 
question,  and  took  it  with  her — the  bond  had  been  in  her 
possession  for  three  months  previous ;  that  her  father  sold 
the  bond  to  Samuel  Porch,  the  defendant,  who  was  to  pay 
his  expenses  while  he  lived,  his  funeral  expenses  when 
he  died,  and  a  bill  of  Doctor  Fisler's ;  she  did  not  recollect 
hearing  anything  said  about  any  other  debts.  The  witness 
further  testifies  to  hearing  the  old  man  say  often  to  the 
defendant,  in  speaking  of  the  assignment,  "  Son,  I  don't 
want  it,  but  don't  let  Baker  cheat  you  out  of  it."  It  is 
proper  to  remark,  in  reference  to  this  witness,  in  addition 
to  the  fact  of  her  being  the  mother  of  the  defendant,  she  is 
cut  off  with  a  legacy  of  ten  dollars  by  the  will  which  dis- 
poses of  this  bond,  if  the  assignment  is  set  aside. 

In  addition  to  this  evidence,  the  defendant  endeavors 
to  show  that  the  assignment  was  absolute  by  corroborat- 
ing circumstances,  and  also  to  prove  that  he  discharged 
the  duties  which  constituted  the  consideration  of  the  as- 
signment. 

I  think  the  evidence  is  sufficient  to  show  that  the  de- 
fendant did  pay  the  then  existing  debts  of  James  Abbott, 
supported  him  comfortably  while  he  lived,  and  gave  him 
a  decent  burial.  But  the  fact  that  he  did  this  is,  standing 
by  itself,  as  consistent  with  the  fact  of  a  qualified,  as  of 
an  absolute  assignment.  If  the  assignment,  by  the  inten- 
tion of  the  parties,  was  a  mere  power  of  attorney,  the  de- 
fendant by  it  having  the  control  of  all  the  property,  and 
being  James  Abbott's  grandson,  it  was  a  reasonable  ex- 
pectation that  the  defendant,  having  funds,  or  abundant 
security  in  his  hands,  would  not  permit  his  grandfather  to 


•252  CASES  IN  CHANCERY. 


Fisler  v.  Porch. 


suffer  from  want,  but  would  discharge  the  debts  of  a  few 
dollars,  and  provide  a  comfortable  living  for  the  old  man. 

There  are  some  circumstances  corroborative  of  the  de- 
fendant's case,  and  which,  in  connection  with  the  evidence 
already  alluded  to,  are  sufficient  to  entitle  him  to  the 
benefit  of  the  defence  set  up  in  his  answer,  unless  it  is 
impeached  by  the  complainant. 

In  September,  1849,  James  Abbott,  while  the  bond  and 
mortgage  were  in  his  possession,  made  his  will  disposing 
of  all  his  property,  which  consisted  of  this  bond  and 
mortgage  only.  The  will  was  in  the  possession  of  John 
Harding,  who  was  the  executor  named  in  it.  In  April, 
1851,  nearly  ten  months  after  the  assignment,  James  Ab- 
bott drew  an  order  upon  Harding,  requesting  him  to  de 
liver  the  will  to  the  bearer  of  the  order,  and  stating  in  the 
order  that  he  had  made  some  other  alteration,  and  did  not 
wish  that  will  to  have  any  effect.  It  does  not  appear  that 
the  defendant  had  anything  to  do  with  procuring  that 
order,  or  indeed,  that  he  had  any  knowledge  of  it.  This 
order  was  taken  to  Harding,  but  he  refused  to  give  up  the 
will.  He  said  that  he  understood  there  was  some  difficulty 
in  the  family,  and  that  he  would  rather  not  give  up  the 
will.  Jacob  DeHart  says  he  drew  the  order  at  the  re 
quest  of  Abbott,  who  at  the  time  said  he  wished  the  will 
taken  up ;  that  he  had  signed  away  his  property.  When 
the  witness  told  him  that  Harding  refused  to  comply  with 
the  order,  he  said  he  ought  to  have  given  it  up ;  but  that 
it  did  not  make  much  odds,  he  could  make  another,  but  he 
had  nothing  to  will. 

Prudence  DeHart  says,  when  she  came  home  after 
Harding  had  refused  to  give  up  the  will,  James  Abbott 
said,  it  would  make  no  difference ;  that  he  had  no  property, 
for  he  had  assigned  it  all  to  Samuel  Porch ;  and  she  heard 
him  say  that  often. 

Edith  DeHart  says,  "  I  have  heard  him  say  that  he  did 
not  want  any  will ;  that  he  had  got  rid  of  his  property,  and 
had  nothing  to  leave." 


OCTOBER  TEEM  1854.  253 

Ksler  v.  Porch. 

There  was  no  effort  made  in  cross-examining  the  wit- 
nesses, or  by  the  introduction  of  any  other  evidence,  to 
cast  discredit  upon  this  order,  or  to  weaken  the  natural 
force  and  effect  it  is  calculated  to  produce.  It  would  have 
been  more  satisfactory  if  the  witnesses  had  been  ques- 
tioned in  reference  to  this  order.  The  course  of  the  cross- 
examination  leads  me  to  suppose  that  the  defendant's 
counsel  were  not  disposed  to  question  the  accuracy  of  the 
witnesses  in  reference  to  this  transaction,  or  the  color  they 
gave  to  this  feature  of  the  case. 

The  complainant,  to  sustain  the  case  made  by  the  bill, 
relies — 

First.  Upon  the  improbability  that  James  Abbott  should 
have  made  the  assignment,  as  an  absolute  one,  upon  the 
consideration  alleged  by  the  defendant.  That  an  old  man, 
eighty-six  years  of  age,  having  all  his  property  in  a  bond 
and  mortgage  of  three  thousand  dollars  ;  having  no  home, 
but  boarding  around  among  his  children ;  having  several 
sons  and  several  daughters,  from  whom  his  affections  were 
in  no  manner  alienated,  should  have  given  away  all  his 
property  to  a  grandson  upon  a  naked  promise  that  he 
would  maintain  him  while  living,  and  provide  for  him  a 
decent  burial ;  that  he  should  not  have  taken  any  evidence 
of  the  agreement,  and  should  have  made  it  without  con- 
sultation with  any  of  his  children,  or  any  friend,  can 
scarcely  be  accounted  for,  except  as  an  improvident  bar- 
gain of  an  imbecile,  childish  old  man.  If  James  Abbott 
himself  had .  filed  this  bill,  the  court,  upon  the  evidence, 
would  not  have  listened  a  moment  to  the  defendant's  al- 
legation that  the  assignment  was  an  absolute  one.  The 
case  is  altered  by  the  fact,  that  the  agreement  is  executed ; 
that  the  parties  lived  under  the  agreement  for  more  than 
a  year ;  that  as  far  as  the  evidence  goes,  James  Abbott 
remained  satisfied  with  it,  and  never  endeavored  to  recall 
or  gainsay  it ;  and  that  he  was  furnished  a  decent  burial 
under  its  provisions.  The  fact,  that  the  complainant  is 
asserting  rights,  as  the  representative  of  James  Abbott, 

VOL.  ii.  Y 


254  CASES  IN  CHANCEKY. 

Fisler  v.  Porch. 

under  an  instrument  which  in  his  lifetime  lie  repudiated 
when  it  came  in  conflict  with  the  assignment,  is  entitled 
to  much  consideration. 

Again.  The  complainant  endeavors  to  rebut  the  evi- 
dence upon  which  the  defendant  relies,  by  showing  the 
declarations  of  the  defendant  to  different  individuals,  and 
on  various  occasions,  to  have  been  inconsistent  with  the 
claim  he  now  makes  to  the  bond  and  mortgage. 

Richard  H.  Tice  testifies  he  had  a  conversation  with-  the 
defendant,  when  the  witness  told  him  that  it  was  a  shame 
the  matter  in  reference  to  the  judgment,  which  had  been 
obtained  upon  this  bond  against  Baker,  could  not  be  set- 
tled between  them  ;  the  defendant  said,  he  had  no  right 
to  offset  Baker's  bill ;  that  he  was  authorized  to  collect 
the  money,  but  to  pay  nothing  out  of  it.  He  said,  if  the 
old  man  was  willing,  he  had  no  objections.  The  witness 
observed  to  defendant,  that  if  he  had  a  power  of  attorney 
that  would  authorize  him  to  settle.  Defendant  replied  that 
he  had  nothing  more  to  do  with  it,  except  to  collect  the 
money ;  and  that  when  the  money  was  collected,  he  was 
bound  to  pay  it  over  to  the  old  man.  The  witness  says 
this  conversation  took  place  in  William  Tweed's  store, 
and  that  Mr.  Tweed  took  part  in  it.  He  mentions  the 
names  of  four  individuals  as  present  besides  defendant 
and  himself.  Three  of  them,  including  Mr.  Tweed,  were 
called  by  defendant.  They  deny  ever  having  heard  any 
such  conversation  as  that  detailed  by  the  witness.  Thomas 
Willetts,  one  of  the  persons  named  as  having  been  pres- 
ent, says  he  has  no  recollection  of  any  such  conversa- 
tion ;  he  says,  if  he  had  been  present  and  heard  any  such 
conversation,  he  thinks  he  should  have  recollected  some- 
i  thing  about  it.  The  force  of  Tice's  testimony  is  certainly 
>very  much  weakened  by  the  fact  that  the  witnesses  whom 
:  he  appeals  to  for  corroboration  do  not  sustain  him. 

Jacob  Davis  says,  that  in  a  conversation  with  him,  he 
'  told  defendant  he,  witness,  understood  he  owned  the  bond ; 
•lie  replied  he  did  not.  He  said  he  had  a  power  of  attor- 


OCTOBER  TEEM,  1854.  255 


Fisler  v.  Porch. 


ney  from  his  grandfather  to  collect  it,  and  that  he  could 
not  let  him  up.  He  said  distinctly,  he  did  not  own  the 
bond,  but  he  said  nothing  further  in  explanation  than  that 
he  had  a  power  of  attorney  from  his  grandfather  to  col- 
lect it.  No  one  but  defendant  and  witness  were  present 
at  this  conversation  ;  it  took  place  some  three  years  be- 
fore the  evidence  was  given.  Witness  never  repeated  the 
conversation  to  any  one  before  giving  his  evidence.  When 
I  remark,  that  at  the  very  time  this  conversation  is  alleged 
to  have  occurred,  there  was  a  contest  going  on  in  refer- 
ence to  the  boYid,  and  that  the  defendant  was  then  actu- 
ally claiming  it  as  his  own,  it  is  a  reasonable  conclusion 
that  the  witness  misapprehended  the  defendant  ;  and  as 
the  witness  gives  only  the  impression  made  upon  him, 
which  was  three  years  previous,  we  may  withold  any  re- 
liance upon  his  testimony  without  at  all  impeaching  his 
integrity. 

The  only  other  witness  upon  whom  the  defendant  relies 
is  John  G.  Baker.  John  G.  Baker  testifies  to  a  conversa- 
tion between  himself  and  defendant,  when  the  defendant 
made  declarations  in  reference  to  the  bond  inconsistent 
with  his  being  the  absolute  owner  of  it.  But  Mr.  Baker 
does  not  occupy  a  position  to  entitle  him  to  the  credit  of  a 
disinterested  witness  ;  and  I  think  a  remark  like  this 
may  be  made  of  witnesss  without  casting  any.  shade  upon 
his  character.  Where  he  is  interested  in  the  event  of  a 
suit,  though  an  interest  which  does  not  exclude  him  as  a 
witness,  yet  where  he  entertains  inimical  feelings  of  long 
standing  towards  the  party  against  whom  he  is  called, 
where  there  is  a  feeling  existing  between  them  relating  to 
the  very  matter  in  controversy,  and  where  the  witness  is 
taking  an  active  part  in  the  suit,  such  a  witness,  no  mat 
tor  how  exalted  his  character,  is  not  entitled  to  the  credit 
of  a  disinterested  witness.  He  sees  things  and  judges  ol 
things  through  a  distorted  medium,  and  it  is  natural  that 
false  impressions  should  be  made  upon  his  mind,  which 
do  not  bear  any  more  resemblance  to  the  truth,  but  are 


256  CASES  IN  CHANCERY. 

Plum  et  al  v.  The  Morris  Canal  and  Banking  Co.  et  al. 

rather  deepened  With  their  original  coloring  after  years 
have  passed  away  and  the  cause  of  controversy  still  ex- 
isting. Mr.  Baker's  position  is  a  peculiar  one.  There  is 
an  angry  contest  existing  between  him  and  the  defendant 
in  reference  to  the  bond,  the  subject  of  this  suit.  The  de- 
fendant has  a  judgment  against  him  and  a  levy  upon  his 
property  :  the  witness  claims  that  he  has  an  account 
against  James  Abbott,  which  ought  to  be  allowed  him, 
and  deducted  from  this  judgment  ;  the  defendant  refuses 
to  allow  it.  The  witness  procured  Joseph  Fisler,  the  com- 
plainant, to  take  out  letters  of  administration  for  the  very 
purpose  of  insituting  this  suit  and  settling  the  account 
which  the  witness  has  against  the  estate  :  the  witness'  son 
married  the  complainant's  daughter. 

I  have  thus  adverted  to  all  the  material  evidence  bear- 
ing upon  the  issue  in  this  case,  and  I  am  in  doubt  where 
the  truth  of  the  case  lies  ;  I  am  in  doubt  as  to  whether 
the  assignment  was  intended  as  an  absolute  one,  or  as  a 
mere  authority  to  enable  the  defendant  to  collect  the  mo- 
ney. Here  is  a  doubtful  matter  of  fact,  one  peculiarly 
fitted  for  a  jury  to  try.  It  is  the  right  of  the  court  to  di- 
rect an  issue  in  such  a  case,  and  I  feel  it  is  my  duty  to  do 
'so  in  this. 

CITED  in  Mitter  v.  Gregory.  1  C.  E.  Gr.  275;  Carlisle  v.  Cooper,  6  C.  E. 
O.  R.  590. 


STEPHEN  H.  PLUM  and  others  vs.  THE  MOKKIS  CANAL  AND 
BANKING  COMPANY  and  THE  MAYOK  AND  COMMON  COUN- 
CIL OF  THE  CITY  OF  NEWARK. 

Two  complainants  with  distinct  causes  of  action,  alleging  distinct  injuries, 
cannot  unite  in  the  same  bilL  To  authorize  them  to  join  as  complainants, 
their  cause  of  action  must  be  the  same,  the  injury  the  same,  and  they  must 
be  entitled  to  the  same  remedy. 

The  city  of  Newark  has  authority,  by  its  charter,  to  grade  and  regulate  its 
public  highways;  the  owners  of  property  adjacent  to  such  improvements 
have  no  legal  claim  upon  the  city  for  incidental  damages. 

In  the  exercise  of  its  chartered  powers,  the  city  has  no  right  to  occupy  or 
appropriate  private  property  without  making  compensation,  nor  would  its 


OCTOBEK  TERM,  1854.  257 

Plum  et  al  v.  The  Morris  Canal  and  Banking  Co.  et  al. 

authorities  be  permitted  to  do  any  wanton  or  unnecessary  damage,  direct  or 
incidental,  to  any  individual's  property.  But  the  mere  discretion  of  the  city 
authorities  cannot  be  interfered  with,  or  in  any  manner  controlled  by  this 
«ourt,  so  long  as  that  discretion  is  exercised  within  its  appropriate  and  legal 
limits. 


W.  Pennington,  for  complainants. 
F.  T.  Frelinghuysen^  for  defendants. 

THE  CHANCELLOR.  The  complainants  are  the  owners 
of  dwelling  houses  and  lands  situated  in  Washington  and 
Plane  streets,  in  the  city  of  Newark.  Their  bill  alleges 
that  the  Canal  Company  constructed  their  canal  through 
the  city  of  Newark,  and  erected  bridges  over  the  canal 
where  it  crosses  Washington  and  Plane  street,  more  than 
twenty  years  ago ;  that  the  complainants  have  constructed 
and  arranged  their  houses  so  as  to  adapt  them  to  the  height 
of  the  bridges,  as  they  were  originally  erected ;  that  many 
of  the  said  houses  and  lots  were  subjected  to  great 
damage  by  the  original  construction  of  the  bridges  requir- 
ing the  streets  to  be  filled  up  so  as  to  make  the  passage 
over  them  natural  and  easy,  by  which  the  location  of  the 
complainants'  lots  were  made  much  lower,  and  thus  greatly 
damaged. 

The  bill  further  alleges,  that  the  complainants  have  un- 
derstood and  believe  that  recently  some  arrangement  has 
been  entered  into  between  the  Canal  Company  and  the 
city  of  Newark,  by  which  the  city  have  stipulated,  at  the 
expense  of  the  city,  to  raise  the  said  bridges  some  two 
feet  higher  than  they  now  are ;  that  the  raising  of  the 
said  bridges  two  feet  above  their  present  height,  or  any 
higher  than  they  now  are,  will  work  a  great  and  irrepara- 
ble injury  to  the  property  of  the  complainants,  and  will 
constitute  a  nuisance;  that  the  manner  in  which  the  said 
bridges  have  already  been  constructed  has  obliged  the 
road  leading  to  the  same  to  be  tilled  up,  in  order  to  pass 
the  bridges;  and  that  still  further  to  rai.se  the  bridges, 


258  CASES  IN  CHANCEKY. 

Plum  et  aL  v.  The  Morris  Canal  and  Banking  Co.  et  aL 

will  require  the  road  to  be  filled  up,  so  as  to  bury  and  ma- 
terially and  irreparably  injure  the  complainant's  property. 

The  bill  prays  the  defendants  may  be  enjoined  from 
raising  the  bridges  above  their  present  elevation. 

The  defendants  have  answered  the  bill.  They  admit  that 
an  agreement  has  been  made  between  the  city  and  Canal 
Company,  for  the  latter  to  maintain  the  bridge  in  contro- 
versy ;  they  aver  their  right  to  make  the  agreement  under 
a  law  of  the  state  ;  the  city  of  Newark  admits  that,  under 
their  authority,  the  bridges  are  about  being  raised  ;  they 
deny  that  they  are  to  be  raised  two  feet  above  their  present 
height,  but  allege  they  are  to  be  raised  one  foot  only  ;  they 
deny  that  the  street  is  to  be  filled  up,  so  as  to  bury  the 
complainants'  property ;  they  aver  that  they  do  not  intend 
to  interfere  with  the  sidewalks,  and  that  no  injury  will  be 
done  to  the  complainants ;  they  claim  the  right,  under  the 
city  charter,  to  alter  the  grades  of  the  public  highways 
without  compensating  the  owners  of  adjacent  lots  for  inci- 
dental damages. 

This  bill  cannot  be  maintained  by  the  present  complain- 
ints.  They  are  improperly  joined  in  the  same  bill.  The 
complaint  is,  that  the  defendants  are  elevating  above  their, 
present  height  the  bridges  in  "Washington  and  Plane  streets. 
Samuel  Smith  is  the  owner  of  the  property  on  Plane  street. 
The  bridge  in  Washington  street  in  no  manner  affects  his 
property.  His  complaint  is,  that  he  is  damaged  by  the 
defendants  heightening  the  bridge  *in  Plane  street,  where 
his  property  is  located.  It  is  manifest,  therefore,  that  he 
cannot  maintain  a  suit  against  the  defendants  in  reference 
to  anything  they  may  contemplate  doing  with  the  Washing- 
ton street  bridge. 

Linn  Adams,  another  complainant,  is  the  owner  of 
three  houses  and  lots  of  land  in  Washington  street.  But 
what  complaint  has  he  against  the  defendants  for  inter- 
fering with  the  Plane  street  bridge?  None  at  all.  His 
damage,  if  any,  is  sustained  by  raising  the  bridge  in 
Washington  street.  If,  then,  Samuel  Smith  has  any  cause 
of  action  against  the  defendants,  it  is  for  raising  the  Plane 


OCTOBEE  TEEM,  1854.  259 

Plum  et  al.  v.  The  Morris  Canal  and  Banking  Co.  et  aL 

street  bridge.  If  Linn  Adams  has  any  cause  of  action,  it 
is  for  raising  the  Washington  street  bridge.  Here,  then, 
are  two  complainants,  with  distinct  causes  of  action,  alleg- 
ing distinct  injuries,  uniting  in  the  same  bill.  To  au- 
thorize them  to  join  as  complainant,  there  cause  of  action 
must  be  the  same,  the  injury  the  same,  and  they  must  be 
entitled  to  the  same  remedy.  Suppose,  in  the  investigation 
of  this  cause,  it  should  appear  that  the  defendants  have 
a  'right  to  elevate  the  bridge  in  Washington,  but  not 
the  one  in  Plane  street ;  then  Linn  Adams  is  entitled  to 
redress,  but  not  Samuel  Smith.  The  defendants'  defence 
against  one  complainant  may  rest  upon  entirely  different 
grounds  from  that  against  the  other. 

But  as  the  complainants  claim  the  right  to  amend  their 
bill,  in  order  to  obviate  this  objection,  it  may  save  expense 
to  the  parties  to  look  into  the  merits  of  the  controversy. 

By  the  original  act  of  incorporation,  the  Canal  Company 
is  required  to  make  good  and  sufficient  bridges  wherever 
the  canal  crosses  any  public  road,  and  to  keep  the  same 
in  repair.  Undpr  this  act,  the  Morris  Canal  Company  con- 
structed the  bridges  which  are  the  origin  of  this  suit.  By 
an  act  of  the  legislature  of  1845,  entitled,  "  An  act  rela- 
tive to  bridges  over  the  Morris  canal,"  the  proper  officers 
of  any  city  are  authorized  to  contract  with  the  company 
for  the  maintenance  and  repair  of  any  bridges  in  the  city, 
and  the  city  is  compelled,  after  such  contract,  to  keep  in 
repair  and  maintain  the  bridges  embraced  in  the  contract 
the  same  as  other  bridges  belonging  to  the  city. 

Under  this  act  of  the  legislature,  the  city  and  the  Canal 
Company  entered  into  an  agreement,  by  which,  for  a  suf- 
ficient consideration,  paid  or  secured  by  the  company  to 
the  city,  the  duty  of  the  future  maintenance  and  repair  of 
the  bridges  over  the  canal,  where  it  crosses  the  public 
highways  of  the  city,  devolve  upon  the  city  of  Newark. 
The  city  of  Newark  is  therefore  invested  witli  the  same 
power  and  control  over  these  bridges  as  it  has  over  other 
bridges  within  the  city  limits.  If,  then,  the  city  has  the 
right  to  elevate  or  lower  other  bridges  of  the  city,  and  so 


2GO  CASES  IK  CHANCEKY. 

Plum  et  al.  v.  The  Morris  Caiial  and  Banking  Co.  et  al. 

to  grade  and  regulate  the  public  highways  as  to  make  the 
bridges  accessible  arid  convenient  as  public  thoroughfares, 
its  right  to  do  this  in  reference  to  the  Washington  and 
Plane  street  bridges  cannot  be  denied.  The  right  to  regu- 
late the  public  highways  of  the  city  is  conferred  upon  the 
city  authorities  in  express  terms  by  the  charter. 

But  the  defendants'  counsel  insists,  that  if  the  city  has  the 
right  to  raise  these  bridges,  it  must  first  compensate  the 
complainants  for  the  injury  they  sustain  by  the  exercise 
of  this  right.  If  the  complainants  are  entitled  to  such  com- 
pensation, then  the  city  has  no  right  to  regulate  the  grade 
of  any  street  within  its  limits  without  compensating  the 
owners  of  adjacent  property  for  the  damage  they  may  sus- 
tain. For  this  court  to  enforce  such  a  principle  would  be 
embarrassing,  if  not  totally  suspending  the  most  important 
public  improvements  of  the  city.  The  city  has  authority, 
by  its  charter,  to  grade  and  regulate  its  public  highways. 
The  owners  of  property  adjacent  to  such  improvements 
have  no  legal  claim  upon  the  city  for  incidental  damages. 

In  the  exercise  of  its  chartered  powers,  the  city  has  no 
right  to  occupy  or  appropriate  private  property  without 
making  compensation,  nor  would  its  authorities  be  per- 
mitted to  do  any  wanton  or  unnecessary  damage,  direct  or 
incidental,  to  any  individual's  property.  But  the  mere 
discretion  of  the  city  authorities  cannot  be  interfered  with 
or  in  any  manner  controlled  by  this  court,  so  long  as  that 
discretion  is  exercised  within  its  appropriate  and  legal 
limits. 

The  bill  charges,  that  the  raising  of  the  bridges  and 
filling  up  the  streets  will  necessarily  "  bury  up  "  the  com- 
plainant's property.  Against  such  a  wrong,  the  complain- 
ants would  be  entitled  to  the  protection  of  this  court. 
This  allegation  the  defendants  deny.  The  answer  states, 
that  it  is  the  intention  of  the  defendants  to  raise  the  car- 
riageway of  the  street  one  foot  only,  commencing  at  the 
hight  of  one  foot  at  the  canal,  and  overcoming  that  ele- 
vation by  a  gradual  slope,  at  a  distance  of  twenty-five 


OCTOBER  TERM,  1854  261 


Snover  v.  Snover. 


feet,  in  the  middle  of  the  street,   and  that  the  sidewalks 
will  not  be  interfered  with  at  all. 

As  this  is  the  only  ground  for  the  interference  of  the 
court,  and  is  fully  denied  by  the  answer,  the  injunction  must 
be  denied,  and  the  bill  be  dismissed  with  costs. 

CITED  in  SlcKinlij  v.  Chosen  Freeholders  of  Union  Co.,  2  Stew.,  169. 


DELILAH  SNOVER  vs.  SAMUEL  SNOVER. 

Chargss  of  adultery  are  improper  in  a  bill  which  prays  for  a  divorce  a  mensa 

et  thoro  only. 
So  much  of  the  evidence  as  related  to  acts  of  adultery  suppressed. 


Sherrard  and  W.  L.  Dayton,  for  complainant. 
D.  A.  Depue  and  J.  S.  Nevius  for  defendant. 

THE  CHANCELLOR.  The  bill  prays  for  a  divorce  from 
bed  and  board.  He  charges  specific  acts  of  adultery,  be- 
sides setting  out  sufficient  acts  of  extreme  cruelty  to  en- 
title the  complainant  to  relief  on  the  latter  ground.  The 
evidence  taken  is  very  voluminous,  and  a  very  large  por- 
tion of  it  relates  to  acts  of  adultery  committed  by  the 
defendant  with  individuals  other  than  those  named  in  the 
bill.  As  the  bill  prays  for  a  divorce  a  mensa  et  thoro  only, 
the  charges  of  adnltcry  were  improperly  introduced  into 
the  bill.  The  defendant,  however,  answered  the  bill,  and 
the  cause  having  been  put  at  issue,  the  parties  proceeded 
to  take  their  testimony.  At  the  hearing  on  behalf  of  tli3 
defendant,  it  was  moved  that  so  much  of  the  evidence  as 
relates  to  acts  of  adultery  ought  to  be  suppressed.  The 
complainant  has  not  sought  relief  in  this  court  for  a  dis- 
solution of  the  marriage  bond  on  the  ground  of  adultery. 
The  gravaman  of  her  bill  is  extreme  cruelty,  and  she  ask* 
the  relief  provided  by  the  statute  for  such  a  grievance. 
This  question  has  been  more  than  once  decided  in  this 
court,  and  upon  these  authorities  the  evidence  must  be 


262  CASES  IN  CHANCERY. 

Snover  v.  Snover, 

suppressed.  I  observed  on  an  examination  of  the  depo- 
sitions, that  the  evidence,  when  offered  before  the  master, 
was  objected  to.  Laying  aside  this  evidence,  there  is 
abundance  in  the  case  to  entitle  the  complainant  to  the  de- 
cree she  asks  for. 

The  bill  prays  also  for  alimony.  There  is  no  need  of 
referring  this  matter  to  a  master,  as  I  have  all  the  evi- 
dence before  me  which  would  enable  the  master  to  deter- 
mine the  amount  proper  to  be  allowed.  The  defendant  is 
a  cripple,  having  but  one  of  his  arms.  He  has  considera- 
ble real  estate,  which,  however,  is  not  very  productive. 
The  complainant  has  a  legacy  secured  to  her  of  $1,200. 
It  appears  to  me  that,  under  the  circumstance,  an  allow- 
ance of  two  dollars  and  a  half  a  week  would  be  proper. 
The  defendant  must  pay  the  taxed  costs  of  this  suit.  The 
costs  of  the  suppressed  evidence  must  be  deducted.  An 
additional  allowance  of  fifty  dollars  for  counsel  fees  will 
be  allowed. 

There  are  eight  children.  The  youngest  is  a  little  girl 
of  seven  years  of  age,  and  it  is  proper  she  should  be  pro- 
vided for.  The  defendant's  counsel  objected  to  any  inter- 
ference with  the  children.  It  is  true  the  bill  does  not  pray 
any  decree  in  reference  to  their  provision  or  disposition. 
But  their  situation  is  before  me,  and  the  decree  to  be 
made  in  this  case  respecting  the  parents  affects  their  wel- 
fare. It  is  the  duty  of  the  court  to  protect  such  of  them 
as  require  its  care.  Looking  at  the  character  of  the  case, 
I  think  it  is  proper  that  the  youngest  child  should  remain 
with  the  -mother,  and  that  the  father  should  pay  a  proper 
sum  for  her  support.  Seventy-five  cents  a  week  will  be 
allowed  for  that  object. 

All  these  allowances  are  subject  to  the  order  of  the 
court,  from  time  to  time,  upon  the  application  of  either 
party. 

Payment  must  be  made  quarter  yearly  by  the  defend- 
ant. If  the  parties  cannot  agree  upon  the  security,  there 
must  be  a  reference  to  a  master. 


OCTOBER  TERM,  1854.  263 

"Warbass  v.  Armstrong. 


MARTHA  M.  WARBASS  vs.  JAMES  B.  ARMSTRONG  and  others. 

The  rule  of  the  common  law  is  undoubtedly  well  established,  that  a  trustee, 
executor,  or  administrator  shall  have  no  allowance  for  his  care  or  trouble. 
The  Court  of  Chancery,  independent  of  any  statute  law  or  local  custom, 
has,  with  few  exceptions,  adopted  this  rule. 

In  New  Jersey  the  rule  is  different.  Executors,  administrators,  guardians, 
and  trustees  are  allowed  compensation  by  statute,  and  the  principle  upon 
which  allowance  is  to  be  made  is  regulated  by  statute.  The  statute  declares 
it  shall  be  made  with  reference  to  their  actual  pains,  trouble,  and  risk  in 
settling  the  estate,  rather  than  in  respect  to  the  quantum  of  the  estate. 

The  commissions  are  a  compensation  for  the  faithful  discharge  of  duty. 
Where  a  testator  gave  discretion  to  trustees  to  sell  land,  and  directed  that, 
if  sold,  the  proceeds  should  be  invested  in  good  landed  security  ;  held  that 
it  the  funds  arising  from  the  sale  had  been  in  the  hands  of  the  trustees,  and 
had  remained  so  for  a  long  period  without  any  security,  that  they  had 
violated  their  duty  as  trustees,  and  were  not  entitled  to  commissions. 

Trustees  who  did  not  invest  according  to  the  terms  of  the  trust  compelled  to 
pay  the  co.sts  of  the  suit,  the  complainant  having  been  driven  into  litiga- 
tion to  establish  the  amount  of  the  trust  fund. 


J.  Linn  and  M.  Ryerson,  for  complainant. 
J).  TJwmpson  and  J.  Wilson,  for  defendants. 

THE  CHANCELLOR.  The  exceptions  to  the  master's  report 
all  relate  to  the  subject  of  commissions.  It  is  insisted  that 
trustees  are  not  entitled  to  compensation  for  services  ren- 
dered in  the  performance  of  their  trust :  and  again,  if  they 
are  entitled  to  such  compensation,  the  allowances  made 
in  this  case  are  too  large,  and  in  other  respects  not  proper. 
The  rule  of  the  common  law  is  undoubtedly  well  estab- 
lished, "  that  a  trustee,  executor,  or  administrator  shall 
have  no  allowance  for  his  care  and  trouble,"  as  it  was  laid 
down  by  Lord  Talbot  in  Robinson  v.  Pitt,  3  P.  Wins.  249. 
The  Court  of  Chancery,  independent,  of  any  statute  law 
or  local  custom,  has,  with  few  exceptions,  adopted  this 
rule.  In  New  Jersey  the  rule  is  different.  Executors,  ad- 
ministrators, guardians,  and  trustees  are  allowed  compeii- 


264:  CASES  IN  CHANCEBY. 

Warbass  v.  AnAstrong. 

sation  by  statute,  (Laws  of  AT.  Jersey  214:,  §  26,)  and  the 
principle  upon  which  allowance  is  to  be  made  is  regulated 
by  statute.  The  statute  declares  it  shall  be  made  with 
reference  to  their  actual  pains,  trouble,  and  risk  in  settling 
the  estate,  rather  than  in  respect  to  the  quantum  of  estate. 
It  is  true,  in  the  case  of  The  State  Sank  at  Elizabeth  v. 
Marsh  and  Edgar  (Sax.  288),  the  Chancellor  declared  the 
general  principle  to  be  well  settled,  that  trustees  are  not 
entitled  to  compensation  for  services  rendered  in  the  per- 
formance of  their  trust,  without  adverting  to  the  fact,  that 
such  rule  did  not  prevail  in  this  state.  But  in  that  case 
the  interlocutory  decree,  upon  which  the  master's  report 
was  based,  allowed  commissions  to  the  trustees :  and  in 
the  same  opinion  the  Chancellor  did  not  decide  that  the 
commissions  should  be  disallowed,  but  he  reduced  them 
from  six  per  cent.,  which  was  the  amount  allowed  by  the 
master,  to  four  per  cent.  In  the  case  of  Jackson  v.  Jack- 
son's ex's  (2  G.  C.  R.  113),  the  same  Chancellor  expressly 
recognizes  the  right  and  power  of  the  court  to  make  an 
equitable  and  just  compensation  to  trustees  for  their  ser- 
vices. 

The  only  remaining  question  is,  whether  the  allowances 
made  by  the  master  are  proper  ? 

As  to  the  allowance  of  $151.15  on  $3023.11,  I  think  it 
was  properly  made  by  the  master,  and  that  it  is  reason- 
able. The  evidence  was  satisfactory  to  show,  that  at  the 
attempt  at  settlement,  on  the  llth  of  April,  1844,  it  was  ad- 
mitted that  this  was  the  amount  of  the  trust  fund  in  the 
hands  of  James  B.  Armstrong,  one  of  the  defendants,  but 
it  was  not  admitted  that  he  then  relinquished  his  claim 
to  commissions.  Nor  can  I  see  any  propriety  in  his  being 
required  to  do  so.  He  had  the  management  of  the  trust 
fund,  which  was  by  the  will  left  very  much  to  the  discre- 
tion of  the  trustees  for  twenty  years  previous  to  that  pe- 
riod, and  the  evidence  shows  that  it  was  during  that  time 
of  considerable  trouble  to  him.  It  is  true  $100  of  the 
fund  was  lost ;  but  under  the  circumstances,  no  court 


OCTOBER  TEEM,  1854.  265 

Warbass  r.  Armstrong. 

would  hold  him  responsible  for  the  loss.  His  sister,  the 
cestui  que  trust,  was  a  married  woman.  The  trustees,  in  the 
mode  of  investment,  had  consulted  and  followed  the  advice 
of  the  cestui  que  trust  and  her  husband,  and  I  think 
very  properly.  The  loss  was  occasioned  by  the  compli- 
cated arrangements  in  payment  of  property  purchased  for 
the  cestui  que  trust,  made  by  herself  and  husband.  I  do 
not  think  that  the  exceptant  has  any  reasonable  ground  of 
complaint  on  account  of  this  allowance. 

The  further  sum  of  $81.27,  allowed  for  the  disburse- 
ments of  the  fund  after  the  llth  of  April,  1840,  is  a  very 
moderate  allowance,  provided  under  the  circumstances  the 
trustee  is  entitled  to  anything. 

v  O 

The  trust  fund  was  originally  in  real  estate.  It  was  so 
left  by  the  testator.  He  directed  by  his  will,  which  cre- 
ated the  trust,  that  the  lands  so  devised  should  be  man- 
aged and  controlled  in  such  way  and  manner  as  the  three 
trustees,  or  a  majority  of  them,  should  think  best  and 
most  for  the  advantage  of  his  daughter,  the  complainant, 
and  either  to  rent  or  sell  the  same,  or  any  part  thereof. 
He  directed  that  if  sold,  the  proceeds  should  be  invested 
"  in  good  landed  security."  On  the  llth  of  April,  1844, 
the  fund,  amounting  then  to  $3023.11,  was  in  the  hands 
of  James  B.  Armstrong.  The  bill  charges,  that  the  com- 
plainant then  requested  the  defendants  to  invest  the  trust 
fund  in  the  manner  directed  by  the  will.  If  that  fund  has 
not  so  been  invested  during  this  long  period,  but  the  trus- 
tees have  seen  proper  to  permit  it  to  remain  in  the  hands 
of  one  of  the  trustees  without  any  security,  then  they 
have  violated  their  duty  as  trustees,  and  are  not  entitled 
to  commissions.  The  commissions  are  a  compensation  for 
their  faithful  discharge  of  duty.  Jackson  v.  Jackson,  «rV«, 
2  G,  C.  It.  113. 

James  B.  Armstrong  states,  in  his  answer,  that  the  fund 
is  invested.  It  does  not  appear  there  was  any  inquiry 
about  the  matter  before  the  master.  He  simply  states,  in 
his  report,  that  there  was  no  evidence  before  him  that  the 

VOL.  n.  z 


266  CASES  IN  CHANCEKY. 

Warbass  v.  Armstrong. 

fund  was  invested.  There  may  be  some  misapprehension 
upon  the  subject,  as  I  can  hardly  suppose  the  defendant 
would  have  alleged  that  the  fund  was  invested,  if  it  were 
not  so.  If  the  trustee  desires  an  opportunity  of  showing 
that  the  fund  has  been  invested  since  1844,  I  will  give 
him  that  opportunity ;  otherwise  the  commission  since 
the  last  named  period  must  be  disallowed. 

The  defendants  must  pay  the  costs  of  the  suit.  The 
complainant  has  been  driven  into  this  litigation  to  esta- 
blish the  amount  of  the  trust  fund.  The  result  shows 
that,  independent  of  the  commissions,  the  complainant  is 
entitled  to  upwards  of  $600  more  than  the  defendant, 
James  B.  Armstrong,  the  gnly  one  who  has  answered,  ad- 
mits to  be  due.  If  this  discrepancy  arose  from  an  honest 
difference  of  opinion  between  the  parties  involving  some 
principle  proper  for  judical  inquiry,  the  litigation  in  such 
case  ought  not  to  be  at  the  expense  of  the  trustees.  Such 
is  not  the  case  in  the  present  instance.  Upon  authority, 
the  defendants  must  pay  the  costs.  Newton  v.  Bennet,  1 
Bro.  C.  C.  359  ;  Franklin  v.  Frith  and  others,  3  Bro.  C.  C. 
433.  On  the  ground,  too,  that  the  trustees  did  not  invest 
according  to  the  terms  of  the  trust,  they  should  be  com- 
pelled to  pay  the  costs.  In  Seers  v.  Hind,  1  Ves.  294,  the 
Lord  Chancellor  says,  "  When  I  am  obliged  to  give  in- 
terest against  executors  as  a  remedy  for  a  breach  of  trust, 
costs  against  them  must  follow  of  course."  And  in  Piety 
v.  Stace,  4  Ves.  jun.  620,  the  executor  kept  the  fund,  and 
used  it  for  his  own  benefit  contrary  to  his  trust.  He  was 
decreed  to  pay  interest  and  costs. 

CITED  in  Frey  v.  Frey,  2  C.  E.  Gr.  75;  McKnight  v.  Walsh,  8  C.  E.Qr.  148 


OCTOBEK  TERM,  1854.  267 

Hogencamp  v.  Ackerman. 


WILLIAM  S.  HOGENCAMP  vs.    CORNELIUS  ACKEKMAN  et  al. 

If  a  defendant  submits  to  answer,  the  general  rule  is,  he  is  bound  to  answer 
every  immaterial,  as  well  as  material  statement  of  the  bill. 

Where  a  bill  is  filed  for  the  correction  of  a  mistake  in  the  execution  of  a  bond 
and  to  restrain  the  defendants  from  taking  advantage  of  the  mistake  in  cer- 
tain suits  at  law,  the  defendant  may  set  up,  as  a  defence  against  the  com- 
plainant's right  to  relief,  that  the  bond  was  procured  by  fraud. 


THE  CHANCELLOR  The  master  was  wrong  in  sustaining 
the  second  exception  to  the  answer. 

The  bill  alleges  that  the  complainant,  by  virtue  of  the 
execution  in  his  hands,  levied  upon  the  goods  and  chattels 
and  personal  estate  of  the  said  A.  J.  Brown,  then  in  his 
possession.  This  allegation  the  defendants  were  bound  to 
answer,  not  merely  affirmatively  or  negatively,  but  circum- 
stantially. It  was  fairly  within  the  scope  of  a  fair  and  in- 
genuous answer  to  the  charge  for  the  defendants,  if  they 
denied  that  the  property  was  Brown's,  to  state  whose  it 
was.  And  when  the  bill  further  charges  that  the  property 
was  in  the  possession  of  Brown,  the  defendants  were  not 
confined  merely  to  admitting  or  denying  the  fact,  but  if 
admitting  it,  were  at  liberty,  but  perhaps  bound  to  state 
the  circumstances  of  the  possession.  The  question  is  not 
how  far  all  this  may  be  material  to  the  real  issue  ?  If  a 
defendant  submits  to  answer,  the  general  rule  is,  he  is 
bound  to  answer  every  immaterial  as  well  as  material 
statement  of  the  bill.  This  part  of  the  answer,  so  far  from 
being  impertinent,  appears  to  me  pertinent  and  proper. 

Third  exception.  Tin's  exception,  as  far  as  it  relates  to 
the  recital  of  pleadings  in  the  Supreme  and  circuit  courts, 
was  properly  sustained  by  the  master  ;  but  not  as  to  what 
the  exception  characterizes  "  as  long  digressions  and  con- 
versations in  regard  to  the  giving  the  bond,"  This  part 
of  the  answer  relating  t)  the  giving  of  the  bond  is  pro- 
per, for  the  reasons  which  I  shall  givo  in  differing  from 


268  CASES   IN  CHANCERY. 

Hogencamp  v.  Ackerman. 

the  master  in  his  report  upon  the  next,  and  fourth  excep- 
tion. 

Fourth  exception.  The  defendants  admit  the  mistake  in 
the  bond,  but  they  set  up  and  allege  that  the  bond  was 
procured  from  them  by  fraud,  and  they  set  out  at  large 
and  circumstantially  the  alleg  ed  fraud. 

If  the  defendants  could  set  up  fraud,  it  was  necessary 
they  should  set  it  out  circumstantially ',  or  else  it  would 
avail  them  nothing.  The  master  takes  the  broa(j.  ground 
that  the  defendants  could  not  set  up  fraud  at  all.  T.bie  bill 
alleges,  that  on  a  certain  day,  the  defendants  executed  to 
the  complainant  their  joint  and  several  bond  ;  that  in  the 
execution  of  the  bond,  a  mistake  was  made,  which  will 
embarrass  or  defeat  a  recovery  at  law.  The  bill  asks  re- 
lief, and  that  the  mistake  may  be  corrected.  Why  may 
not  the  defendants  set  up,  as  a  defence  against  the  com- 
plainant's right  to  relief,  that  the  bond  was  procured  by 
fraud  ?  Ought  this  court  to  grant  a  party  relief  as  to  any 
matter  in  which  he  is  a  fraud  doer  ?  The  master  says  the 
bill  is  filed  to  correct  a  mistake  in  a  sealed  instrument  as  to 
the  time  of  docketing  a  judgment  in  the  Supreme  court, 
and  to  restrain  the  defendants  from  taking  advantage  of 
the  mistake  in  certain  suits  at  law,  and  for  no  other  pur- 
pose. True  this  is  the  only  purpose.  But  ought  the  com- 
plainant to  have  his  purpose  answered,  if  the  defendants 
can  show  that  the  bond  in  which  the  mistake  occurred 
was  fraudulently  procured  by  the  complainant  ?  Ought 
the  court  to  make  such  a  bond  good,  so  that  the  complain- 
ant may  enforce  it  at  law  ? 

The  master  further  says,  -"that  when  a  suit  is  com- 
menced in  a  court  of  law  having  full  jurisdiction  of  the 
matter,  with  full  power  to  try  and  determine  the  right  of 
property,  and  the  question  of  fraud  involved  in  said  suit, 
the  Court  of  Chancery  would  not  interfere,  and  take  juris- 
diction of  the  case,  especially  when  not  called  upon  so  to 
do  by  either  party,  and  that  the  Court  of  Chancery  should 
only  correct  the  mistake,  and  restrain  the  defendants  from 
taking  advantage  of  the  same." 


OCTOBER  TEEM,  1854.  269 


Harker  v.  Irick. 


The  Court  of  Chancery  has  now  jurisdiction  of  the 
cause  at  the  solicitation  of  the  complainant.  True,  the 
complainant  commenced  his  suit  in  a  court  of  law,  and 
that  court  may  try  the  fraud,  if  the  defendants  set  it  up 
as  a  defence.  The  complainant  has  filed  his  bill  here,  not 
to  recover  his  money  on  the  bond,  but  to  correct  the  mis- 
take. He  calls  upon  the  defendants  to  answer  why  the 
mistake  should  not  be  corrected.  They  answer,  because 
the  bond  was  procured  fraudulently.  It  is  a  good  answer, 
and  a  good  defence  to  the  relief.  It  would  be  gross  in- 
justice for  this  court  to  make  a  decree  against  the  defend- 
ants, and  in  favor  of  a  wrongdoer,  if  the  bond  was  fraud- 
ulently procured.  The  defendants  may  set  up,  at  law,  the 
defence  of  fraud  against  the  complainants  recovering  the 
money  due  on  the  bond.  They  may  set  up,  in  this  court,, 
the  fraud  when  the  complainant  is  seeking  to  correct  a 
mistake  in  the  instrument,  in  order  to  make  the  instru- 
ment available  as  a  legal  one.  If  the  bond  was  procured 
by  fraud,  a  court  of  equity  ought  not  to  help  the  com- 
plainant in  his  suit  at  law.  The  fourth  exception  was  not 
well  taken,  and  I  think  the  master  erred  in  sustaining  it. 

Fifth  exception.  This  exception  was  properly  sustained, 
by  the  master. 

CITED  in  Free/and  v.  N.  J.  Stone  Co.,  10  C.  E.  Or.  143. 


CHARLES  II.  HARKER,  surviving  administrator  of  Josepfr 
Kirkbride,  deceased,  vs.  WILLIAM  H.  IRICK  and  others. 

If  a  person  becomes  surety  for  one  as  administrator,  who  at  the  time  is  a 
debtor  to  the  estate  and  is  insolvent,  and  is  never  able  to  discharge  such  in- 
debtedness, such  surety  is  not  bound  for  such  a  delinquency  of  his  principal. 
He  is  only  bound  for  the  faithful  performance  of  his  duties  as  administra- 
tor. 

If,  under  such  circumstances,  the  administrator  should,  in  the  settlement  of 
his  accounts  with  tho  court,  charge  himself  with  the  debt,  mid  the  accounts 
should  be  passed  in  such  a  shape  as  to  bind  the  surety  for  the  debt,  tho 
surety  would  be  relieved,  upon  application  to  the  proper  tribunal,  from 
such  responsibility. 

Z* 


270  CASES  IN  CHANCERY. 

Harkeru  Irick. 

But  if  at  the  time  the  surety  assumes  his  responsibility,  the  administrator 
owes  the  estate,  and  is  solvent  and  able  to  pay,  the  amount  of  the  debt  will 
be  considered,  in  law  and  equity,  as  so  much  money  in  his  hands  as  admin 
istrator  at  that  time,  and  consequently  the  surety  will  be  responsible  for  it 


•T.  L.  JV.  Stratton  and  W.  L.  Dayton,  for  complainants. 
R.  D.  Spencer  and  A.  Browning,  for  defendants. 

THE  CHANCELLOR.  Job  Irick,  late  of  the  county  of  Bur 
lington,  deceased,  left,  at  the  time  of  his  death,  three  minor 
children.  He  left  a  will,  and  appointed  his  brothers, 
William  Irick  and  John  S.  Irick,  and  his  brother  in  law, 
"William  Ridgway,  his  executors.  They  were  also  left  by 
the  will  guardians  of  the  minor  children.  They  took  upon 
themselves  the  execution  of  the  will,  and  they  assumed 
the  guardianship  of  the  minor  children,  entering  into 
bonds,  as  required  by  the  statute,  for  the  faithful  discharge 
of  their  duties  as  guardians.  Their  respective  duties,  both 
as  executors  and  as  guardians,  were  discharged  by  them 
separately.  As  guardians,  they  gave  separate  bonds,  and 
as  executors  and  guardians,  they  settled  separate  accounts 
with  the  Orphans  Court. 

In  the  term  of  February,  1842,  of  the  Orphans  Court 
of  the  county  of  Burlington,  William  Ridgway  made  a 
final  settlement  of  his  accounts  as  executor,  showing  a 
balance  in  his  hands  of  $4792.06.  In  November  term, 
1843,  he  settled  his  accounts  in  the  same  court  as  guar- 
dian, and  charged  himself  with  the  balance  found  in  his 
hands  as  executor,  by  his  account  as  settled.  The  account, 
shows  a  large  balance  due  from  the  guardian. 

Joseph  Kirkbride  was  the  security  on  William  Ridg 
way's  bond  as  guardian.  William  H.  Irick,  one  of  the 
minor  children,  after  arriving  at  age,  caused  a  suit  to  be 
instituted  in  the  Supreme  Court  on  this  bond.  Joseph 
Kirkbride  is  deceased.  This  bill  is  filed  by  his  administra- 
tor. It  charges,  that  the  accounts  settled  in  the  Orphans 
Court  by  William  Ridgway,  both  as  executor  and  as  guar- 
dian, are  erroneous,  and  are  a  fraud  upon  his  security, 


OCTOBEE  TERM,  1854.  271 


Harker  v.  Irick. 


and  asks  the  interference  of  the  court  for  his  protection. 
The  bill  has  been  answered  by  all  the  defendants,  and  the 
cause  set  down  and  brought  to  a  hearing  upon  the  bill 
and  answers. 

As  the  positive  fraud  charged  in  the  bill  is  fully  denied, 
and  the  supposed  errors  specified  satisfactorily  explained 
by  the  answers,  it  was  admitted  on  the  argumeut,  that 
the  controversy  between  the  parties  is  reduced  to  a  matter 
of  one  single  item  charged  in  the  accounts  against  the 
guardian. 

At  the  time  of  the  death  of  Job  Irick,  "William  Ridgf- 
way  was  indebted  to  him  on  a  bond,  on  which  there  was 
due,  at  the  time  Ridgway  settled  his  accounts  as  executor, 
the  sum  of  $2926.  In  his  settlement  as  executor,  he 
charges  himself  with  this  amount  ;  and,  as,  in  his  settle- 
ment of  his  account  as  guardian,  the  balance  found  against 
him  as  executor  was  charged  to  him  as  guardian,  his 
surety  upon  these  proceedings  stands  responsible  for  this 
amount.  This  bond  was,  at  the  time  of  the  settlement, 
in  tne  hands  of  William  Irick,  a  co-executor,  and  it  still 
remains  in  his  hands  uncancelled.  The  complainant  sub- 
mits, that  whatever  may  be  the  effect  of  these  settlements 
and  proceedings  in  the  Orpans  Court,  as  between  Wil- 
liam Ridgway  and  the  other  executors  or  the  minor  chil- 
dren, that  the  same  do  not  bind  Joseph  Kirkbride,  the 
surety,  for  the  amount  of  the  bond  ;  but  that  Joseph  Kirk- 
bride,  in  becoming  surety  for  William  Ridgway  as  guar- 
dian, became  surety  for  such  moneys  only  as  came  to  his 
hands  as  such  guardian,  and  not  surety  for  the  individual 
debt  on  the  bond  of  Ri  dgway  to  Job  Irick. 

If  a  person  becomes  surety  for  one  as  administrator, 
who  at  the  time  is  a  debtor  to  the  estate  and  is  insolvent, 
and  is  never  able  to  discharge  such  indebtedness,  such 
surety  is  not  bound  for  such  a  delinquency  of  his  princi- 
pal. He  is  only  bound  for  the  faithful  performance  of  his 
duties  as  administrator.  It  could  be  no  breach  of  trust  or 
delinquency  in  duty  for  the  administrator  not  to  do  what 


272  CASES  IN  CHANCERY. 

Harker  v.  Irick. 

is  beyond  his  power  and  control  to  perform.  If  under 
such  circumstances,  the  administrator  should,  in  the  set- 
tlement of  his  accounts  with  the  court,  charge  himself 
with  the  debt,  and  the  accounts  should  be  passed  in  such 
a  shape  as  to  bind  the  surety  for  the  debt,  the  surety 
would  be  relieved,  upon  application  to  the  proper  trib- 
unal, from  such  responsibility.  It  would  be  a  frand  upon 
the  surety  to  exact  the  debt  from  him,  whether  the  ad- 
ministrator did  or  did  not,  by  his  mode  of  accounting, 
contemplate  a  fraud.  But  if,  at  the  time  the  surety  as- 
eumes  his  responsibility,  the  administrator  owes  the  es- 
tate, and  is  solvent  and  able  to  pay  the  amount  of  the  debt, 
will  be  considered  in  law  and  equity,  as  so  much  monoy 
in  his  hands  as  administrator  at  the  time,  and,  consequently, 
the  surety  will  be  responsible  for  it.  It  is  the  duty  of  the 
administrator  to  collect  the  debts  of  the  estate  without  de- 
lay ;  and  certainly  any  delay  which  places  the  debt  he  him- 
self owes  the  estate  in  jeodardy,  and  results  in  its  loss,  is  a 
gross  violation  of  his  duty  as  administrator. 

Let  us  apply  this  principle  to  the  present  case.  At  the 
time  of  the  testator's  death,  "William  Ridgway  owed  him 
a  debt  upon  a  bond.  It  was  due  and  payable.  He  assumed 
the  duties  of  executor,  and  settled  his  accounts  in  the 
Orphans  Court.  At  the  time  of  this  settlement  he  was 
able  to  pay.  The  evidence  of  the  debt  was  in  the  hands 
of  one  of  his  co-executors,  William  Irick.  What  was  his 
duty  as  to  this  debt  in  accounting  as  executor  ?  The 
statute  makes  the  debt  assets  in  his  hands,  and  makes  it  his 
duty  to  account  for  it  in  the  same  manner  as  any 
other  part  of  the  personal  estate.  Elm.er  599  §  26.  It  is 
true  the  evidence  of  the  debt  was  in  the  hands  of  a  co- 
executor  ;  but  he  could  not  bring  suit  upon  it,  for  the  debt 
was  not  denied.  The  debt  was  properly  accounted  for  by 
William  Ridgway.  Nine  months  after  this,  Ridgway  ac- 
counted with  the  court  as  guardian.  The  balance  in  his 
hands,  as  shown  by  his  account  as  executor,  belonged  to 
as  guardian.  The  moment  he  accounted  as  executor, 


OCTOBER  TERM,  1854.  273 

Little  v.  Cooper. 

and  the  balance  due  from  the  executor  to  the  guardian 
was  ascertained,  that  balance  was  in  his  hands  as  guardian. 
If  not  then,  when  was  it  to  be  considered  in  his  hands  as 
guardian  ?  The  mere  formality  of  his  transferring  it  from 
one  account  to  another,  crediting  himself  as  executor,  and 
charging  himself  as  guardian,  could  not  certainly  be  ne- 
cessary. But  if  any  formality  of  the  kind  was  required, 
it  was  fulfilled  in  the  settlement  of  his  accounts  as  guar- 
dian. He  then  charged  himself  with  this  balance,  exhibited 
it  to  the  court,  and  the  court  decreed  upon  it.  If  any  for- 
mality was  required,  this  was  surely  enough.  It  was  his 
duty  to  charge  himself  with  this  balance.  It  was  so  much 
in  his  hands  as  guardian.  He  was  solvent  at  the  time,  and 
all  pretence  that  there  was  any  fraud  practised  or  contem- 
plated in  order  to  charge  the  surety,  is  denied  by  the 
answer. 

The  only  question  is,  who  shall  be  the  losers  by  the  pre- 
sent insolvency  of  the  guardian,  his  surety  or  the  minor 
children  ?  Mr.  Kirkbride  was  one  of  the  appraisers  of  the 
personal  property  of  Job  Irick,  and  he  appraised  this  debt 
as  good  in  the  hands  of  the  executors.  It  is  because  the 
guardian  has  not  faithfully  discharged  his  duty,  that  he  is 
unable  to  account  to  his  wards.  It  was  for  such  unfaith- 
fulness that  his  surety  became  responsible. 

The  bill  must  be  dismissed.  As  it  is  a  'bill  filed  by  an 
administrator,  and  as  there  are  some  circumstances  which 
I  have  not  alluded  to,  in  connection  with  the*  account*, 
which  call  for  explanation,  let  the  decree  be  made  witl*- 
out  costs. 

CITED  in  Ordinary  v.  Kershaw,  1  McCar.  529. 


THOMAS  LITTLE  vs.  MATTHEW  H.  COOPER  and  others. 

The  Court  of  Chancery  in  this  state  has  never  adopted  the  principle,  that  be- 
cause its  jurisdiction  has  once  rightfully  attached,  it  will  retain  the  cause, 
an  a  matter  of  right,  for  tho  purposes  of  complete  relief.  See  Brown  tt  at. 
v.  EdsaU  etal.,l  Stockton  256. 


274  CASES  IN  CHANCEKY. 

Little  v.  Cooper. 

All  bills  in  the  court  are,  in  their  nature,  bills  of  discovery.  Some  are  bills 
for  discovery  purely.  When  the  subject  matter  is  one  which  is  properly 
cognizable  at  law  only,  and  adequate  relief  can  be  given  there,  a  Court  of 
Chancery  frequently  takes  jurisdiction,  in  order  that  a  discovery  may  be 
had  on  the  oath  of  a  party,  or  to  compel  the  production  of  papers  and 
documents.  The  end  for  which  the  jurisdiction  of  the  court  was  invoked 
having  been  attained,  the  party  seeks  his  redress  in  the  proper  tribunal  sit 
law. 

A  mere  bill  of  discovery  cannot  properly  pray  for  relief.  Where,  upon  the 
facts  stated,  the  relief  prayed  for  by  the  bill  is  proper,  the  bill  is  somo- 
thing  more  than  a  mere  bill  of  discovery. 


This  was  a  motion  to  dissolve,  upon  bill  and  answer. 

M.  Ryerson  moved  to  dissolve  the  injunction,  and  con- 
tended— 

1st.  That  the  answer  denies  the  equity  of  the  bill. 

2d.  That  the  bill  is  one  of  discovery  only,  and  the  bill 
being  answered,  the  injunction  must  be  dissolved  of  course. 
The  bill,  it  is  true,  prays  for  relief.  It  might  have  been 
demurred  to  on  that  account.  Cited  Eden  134,  note  4  ;  2 
Story's  Eq.  §  881 ;  3  Dan.  C.  P.  1844 ;  Woodcock  v.  King, 
1  Aik.  286  ;  Weymouth  v.  Boyer,  1  Ves.  jun.,  416  ;  Burnett 
and  another,  adm?rs,  &c.,  v.  Saunders,  4  J.  C.  R.  503  ;  Gel- 
ston  and  ScJienck  v.  Hoyt,  1  J.  C.  R.  543  ;  1  S.  Eq.  P.  §  73, 
74  ;  8.  E.  PL  §  324  ;  9  Paige  580  ;  W.  &  D.  Seymour  and 
others  v.  J.  Seymour  and  others,  4  J.  C.  R.  409  ;  2  Hoist. 
C.  R.  210. 

A.  B.  Woodruff,  contra. 

THE  CHANCELLOR.  The  injunction  was  granted  to  stay 
the  proceedings  of  a  suit  in  the  Supreme  Court,  which 
Matthew  H.  Cooper,  one  of  the  defendants,  had  com- 
menced against  the  complainant,  as  the  endorser  of  a  pro- 
missory note.  There  are  nine  defendants  in  the  suit. 

The  bill  was  filed,  and  the  injunction  granted,  on  the 
14th  of  December,  1852.  The  complainant  has  answered 
the  bill,  and  so  also  lias  "William  R.  Winans.  The  answer 
of  Winans  was  not  put  on  file  until  March  2d,  1854.  This 


OCTOBER  TERM,  1854.  275 

Little  v.  Cooper. 

delay  was  owing  to  the  fact  of  the  defendant,  Winans 
having  left  the  State  of  New  Jersey  and  removing  to  St. 
Petersburg,  Russia,  prior  to  the  filing  the  bill  of  com- 
plaint. 

The  facts  upon  which  the  injunction  was  granted,  and 
which  constitute  the  gravamen  of  the  case,  are  within  the 
knowledge  of  the  defendant,  Winans.  They  are  of  a  cha- 
racter to  make  the  continuance  of  the  injunction  by 
the  court  dependant  upon  his  answer.  His  answer,  and 
that  of  Cooper,  the  complainant  are  before  me.  I  do  not 
perceive  that  the  answer  of  any  of  the  other  defendants 
are  at  all  necessary.  The  defendant,  Cooper  makes  this 
motion  to  dissolve  ;  he  has  a  right  to  be  heard  upon  these 
answers,  on  his  motion  to  dissolve. 

On  behalf  of  the  defendant  it  is  insisted,  that  the  an- 
swer being  in,  the  injunction  must  be  dissolved,  because 
the  bill  is  one  of  discovery  merely.  Upon  the  assumption 
that  the  bill  in  this  case  is  purely  a  bill  of  discovery,  as 
distinguishable  from  a  bill  of  discovery  and  relief,  the 
principal  as  laid  down  is  correct,  according  to  the  esta- 
blished practice  of  this  court.  I  have  had  occasion  to  ex- 
amine this  matter  heretofore,  in  the  case  of  Brown  et  al. 
v.  Edsall  and  others,  decided  in  October  term,  1852,  1 
Stockton  256.  I  will  only  repeat  what  was  said  in  that  case. 
The  Court  of  Chancery  in  this  state  has  never  adopted 
the  principle,  that  because  its  jurisdiction  has  once  right- 
fully attached,  it  will  retain  the  cause  as  a  matter  of  right, 
for  the  purposes  of  complete  relief.  All  bills  in  the  court 
are,  in  their  nature,  bills  of  discovery.  Some  are  bills  for 
discovery  purely.  When  the  subject  matter  is  one  which 
is  properly  cogni/.able  at  law  only,  and  adequate  relief  can 
be  given  there,  as  where  damages  are  to  be  ascertained 
or  titles  to  land  tried,  and  in  cases  of  mere  trespass,  a 
Court  of  Chancery  frequently  takes  jurisdiction,  in  order 
that  a  discovery  may  be  had  on  the  oath  of  a,  party,  or  to 
compel  the  production  of  papers  and  documents.  The  end 
for  which  the  jurisdiction  of  the  court  was  invoked  having 


276  CASES  IN  CHANCERY. 

Little  v.  Cooper. 

been  attained,  the  party  seeks  his  redress  in  the  proper 
tribnnal  at  law. 

Where  a  suit  has  been  commenced  at  law,  the  defend- 
ant may  be  entitled  to  a  discovery  from  his  adversary,  and 
may  resort  to  this  court  to  obtain  it.  But  if  he  seeks  to 
change  the  forum  of  litigation,  and  prays  for  relief  as  well 
as  discovery,  the  subject  matter  must  be  one  which  ap- 
propriately belongs  to  equity  jurisdiction.  His  bill  must 
show  a  case  of  manifest  propriety  in  this  court's  retaining 
the  cause.  Fonblanque  and  Cooper  lay  it  down,  that  "  the 
court,  having  acquired  cognizance  of  the  suit  for  the  pur- 
pose of  discovery,  will  retain  it  for  the  purpose  of  relief 
in  most  cases  of  fraud,  account  accident  and  mistake." 
So,  if  it  is  plain  that  adequate  relief  can  be  given,  and  at 
the  same  time  a  multiplicity  of  suits  be  prevented,  the 
court,  having  obtained  jurisdiction,  will  go  on  and  give  the 
proper  relief. 

The  present  bill  was  not  filed  as  a  bill  of  discovery 
merely.  It  has  not  the  essentials  of  a  pure  bill  of  dis- 
covery. It  is  true  it  alleges  that  the  complainant  cannot 
safely  go  to  trial  in  the  action  at  law,  because  the  facts 
constituting  his  defence  are,  as  far  as  he  knows,  or  has 
been  able  to  learn,  almost  wholly,  or  the  principal  part 
thereof  confined  to  the  knowledge  of  the  defendants.  But 
when  a  bill  seeks  discovery  in  aid  of  a  court  of  law,  it 
must  appear  that  the  aid  is  necessary,  and  the  discovery 
material  to  the  defence,  and  that  it  is  not  in  the  power  of 
the  party  to  prove  them  by  witnesses.  Gelston  and  Sohenck 
against  Soyt,  1  J.  O.  JR.  543.  In  the  suit  at  law,  the  com- 
plainant could  have  availed  himself  of  the  testimony  of 
Winans  as  well  as  he  can  in  this  court.  It  was  not  a  dis- 
covery from  the  plaintiff  that  the  defendant  in  the  suit 
wanted,  but  the  evidence  of  a  third  party.  The  injunction 
was  not  granted  upon  this  ground.  The  bill  was  filed  to 
be  relieved  against  a  frand,  which  it  alleged  the  defend- 
ant in  the  suit  at  law,  combining  with  the  other  defend- 
ants in  this  suit,  was  attempting  to  perpetrata.  It  prays 


OCTOBEE  TEEM,  1854:.  277 

-     Lucas  v.   King. 

for  a  specific  relief,  which  a  court  of  equity  only  can  grant, 
to  wit,  that  the  defendants  might  be  decreed  to  deliver 
up  to  the  complainant  a  certain  promissory  note,  which 
the  bill  alleges  was  paid  by  the  note  upon  which  the  suit 
at  law  was  brought,  and  which  was  held  by  the  defend- 
ants, or  some  of  them,  to  be  improperly  enforced  against 
the  complainant.  There  are  other  circumstances  of  fraud 
charged,  more  particularly  upon  Winans,  which  go  to 
affect  the  note  in  the  hands  of  Cooper.  If  the  answers 
had  admitted  the  facts,  the  court  would  have  granted  the 
relief  by  ordering  the  original  note  to  be  delivered  up, 
and  a  perpetual  injunction  against  prosecuting  the  suit  at 
law.  Tins  shows  that  the  bill  was  something  more  than  a 
mere  bill  of  discovery.  A  mere  bill  of  discovery  cannot 
properly  pray  for  relief.  Upon  the  facts  stated,  the  relief 
prayed  for  by  this  bill  is  proper. 

But  I  am  of  opinion  that  the  bill  in  this  case  is  fully 
and  fairly  answered,  and  its  equity  denied.  After  the  very 
severe  criticism  upon  the  answer  of  Winans  by  the  com- 
plainant's counsel,  I  feel  it  my  duty  to  examine  the  an- 
swer with  more  than  ordinary  care.  It  is  true  the  answer 
is  unskilfully  drawn.  It  is  not  entitled  to  less  credit  on 
that  account.  In  every  important  particular,  it  accompa- 
nies the  denial  of  the  matter  alleged  with  facts  and  cir- 
cumstances substantiating  the  denial.  If  the  answer  is 
true,  the  amount  of  the  note  in  suit  is  due  to  Cooper,  and 
the  complainant  has  no  defence  at  law  or  equity  against  a 
recovery. 

CITED  in  Hoppock's  Exrs.  v.  United  JV.  J.  R.  ft.  and  Can.  and  Penna.  R. 
R.  Co.  12  C.  E.  Gr.  200. 


JOHN  LUCAS  and  others  vs.  WILLIAM  KINO  and  others. 

Whoro  a  bill  prays  for  partition,  and  tho  defendants  deny  complainant's 
title,  if  tho  title  in  dispute  is  an  equitable  one,  it  is  the  duty  of  tho  court 
to  nettle  it.  If  it  is  a  le^al  title,  the  court  may  dismiss  the  bill,  or  may  re- 
tain the  cause,  ami  afTord  tho  party  an  opportunity  of  settling  his  title  at 
law. 

But  the  bare  denial  of  tho  complainant's  title  is  no  obstacle  to  tho  court's  pro 

VOL.  IL  2  A- 


278  CASES  IN  CHANCEKY. 

Lucas  v.  King. 

ceeding.  The  defendant  must  answer  the  bill,  and  if  lie  sets  up  a  title 
adverse  to  the  complainant,  or  disputes  the  complainant's  title,  he  must 
discover  his  own  title. 

If  when  the  titles  are  spread  before  the  court  upon  the  pleadings,  the  court 
can  see  there  is  no  valid  legal  objection  to  the  complainant's  title,  there  is 
no  reason  why  the  court  should  not  proceed  to  order  the  partition. 

But  where  there  were  serious  questions,  both  of  law  and  fact,  involved  in 
the  controversy  between  the  parties  as  to  the  title,  the  court  retained  the 
bill,  and  gave  the  parties  an  opportunity  of  settling  the  title  at  law. 


The  bill  states,  that,  on  the  12th  of  January,  1812,  Ben- 
jamin Carman  conveyed,  by  deed  of  bargain  and  sale  in 
fee  simple,  to  the  said  Lucas  and  Elizabeth  Carman,  their 
heirs  and  assigns,  certain  lands,  in  the  bill  particularly  de- 
scribed, in  consideration  of  the  sum  of  $6000  ;  that  Theo- 
dosia  Lucas  died  July  1,  1821,  leaving  the  complainants 
her  heirs  at  law  ;  that,  in  1815,  Elizabeth  Carman  married 
one  William  Idell ;  that  Idell  and  wife  occupied,  with 
Theodosia  Lucas,  the  lands  in  question  until  Theodosia's 
death,  and  after  her  death  with  complainants,  and  up  to 
20th  August,  1828,  when  Elizabeth  Idell  died  ;  that  at  her 
death  Elizabeth  Idell  left  one  child,  Emily,  who  has  mar- 
ried with  one  William  King. 

The  bill  prays  partition. 

William  King  and  Emily  his  wife  answer  the  bill.  They 
deny  that,  by  the  conveyance  to  Theodosia  Lucas  and 
Elizabeth  Carmen,  they  took  the  estate  as  tenants  in  com- 
mon, but  allege  that  the  said  deed,  having  been  made  on 
the  16th  of  January,  1812,  that  by  the  statute  then  in  force 
the  said  deed  created  an  estate  in  joint  tenancy,  with  a 
right  of  survivorship,  incident  -thereto,  and  that,  on  the 
death  of  Theodosia  Lucas,  Elizabeth  Carman  took  the 
whole  estate. 

In  further  answering,  the  defendants  deny  that  Eliza- 
beth Carman,  after  the  death  of  Theodosia  Lucas,  occu- 
pied the  premises  in  common  with  the  complainants,  but 
say,  that  Elizabeth  Carman,  after  the  death  of  Theodo- 
sia Lucas,  and  after  her  marriage  and  up  to  the  time  of 
her  death,  had  the  sole  use  and  enjoyment  of  the  said 


OCTOBEK  TEEM,  1854.  279 

Lucas  v.  King. 

premises,  claiming  them  as  her  own  property ;  and  that, 
since  her  death,  her  daughter  Emily  and  her  husband,  the 
defendants,  have  used  and  enjoyed  them.  They  further 
say,  that  when  the  deed  was  made  by  William  Carman  to 
Theodosia  Lucas  and  Elizabeth  Carman,  to  wit,  on  the 
16th  of  May,  1812,  the  said^  Theodosia  and  Elizabeth  gave 
to  William  Carman  their  bond,  in  the  penal  sum  of  $13,000, 
conditioned  to  pay  $6000,  with  interest  from  date,  on  or 
before  the  16th  day  of  May,  then  next  ensuing,  and  a 
mortgage  upon  the  premises  to  secure  the  payment  of  the 
said  bond ;  that  while  the  said  Elizabeth  was  in  the  sole 
occupancy  of  the  said  premises,  after  the  death  of  Theo- 
dosia Lucas,  26th  December,  1822,  the  said  Benjamin  Car- 
man released  and  quit-claimed  unto  the  said  Elizabeth 
Idell  all  rights,  actions,  and  demands  whatsoever,  both  at 
law  and  in  equity,  which  he  then  had  against  her  on  the 
bond  and  mortgage  aforesaid ;  that  afterwards,  on  the 
12th  September,  1826,  the  said  Benjamin  Carman,  for 
value  received,  did  assign,  set  over,  and  transfer  the  before 
mentioned  bond,  and  all  moneys  due  and  to  become  due 
thereon  and  the  said  mortgage,  unto  the  said  Elizabeth 
Idell,  her  executors,  administrators,  and  assigns.  The  an- 
swer further  states,  that  the  said  Elizabeth  was,  from  the 
time  of  the  death  of  the  said  Theodosia  Lucas,  and  from 
the  time  of  the  marriage  of  the  said  Elizabeth,  in  1810, 
in  the  undisputed  and  sole  possession  of  the  said  premises, 
claiming  and  using  them  as  her  own  property,  and  re- 
mained so  in  possession  until  she  died,  in  1828 ;  that  after 
the  assignment  of  the  said  bond  and  mortgage,  she  be- 
came invested  with  all  the  rights  of  a  mortgagee  in  pos- 
session as  against  the  complainants,  if  they  had  any  title 
in  the  premises  ;  that  since  the  death  of  the  said  Elizabeth, 
the  defendants,  King  and  wife,  have  been  in  the  undis- 
turbed possession  of  said  premises,  claiming  it  as  their 
own  property,  and  that  the  same  has  been  claimed  by  him- 
self, the  said  William  King  and  wife,  and  by  her  mother, 
for  more  than  thirty  years,  and  they  pray  the  panic  benefit 


280  CASES  IN  CHANCERY. 

Lucas  v.  King. 

of  the  statute  of  limitations,  as  if  they  had  formerly  pleaded 
the  same;  that  daring  all  that  period  the  complainants 
resided  in  the  neighborhood,  and  knew  the  defendants 
claimed  the  premises  as  their  own,  and  yet  never  made  any 
demand  of  the  possession. 

The  complainants  filed  a  replication.  Proofs  were  taken 
on  both  sides,  and  the  cause  argued  upon  the  pleadings  and 
proofs. 

W.  Halstedy  for  complainants. 
W.  L.  Dayton,  for  defendants. 

THE  CHANCELLOR.  The  only  relief  the  bill  prays  for  is, 
that  there  may  be  a  partition  of  the  land  and  premises 
therein  described  between  the  parties. 

The  defendants  deny  the  complainants'  title.  If  the 
title  in  dispute  is  an  equitable  one,  it  is  the  duty  of 
this  court  to  settle  it.  If  it  is  a  legal  title,  the  court  may 
dismiss  the  bill,  or  may  retain  the  cause,  and  afford  the 
party  an  opportunity  of  settling  his  title  at  law.  Alnat  on 
Partition  101 ;  Bliman  v.  J3rown,  2  Vern.  232  ;  1  Story's 
Eq.,  note  1,  §  650. 

I  do  not  understand,  however,  that  the  bare  denial  of 
the  complainants'  title  is  any  obstacle  to  the  court's  pro- 
ceeding. The  defendant  must  answer  the  bill,  and  if  he  sets 
up  a  title  adverse  to  the  complainant,  or  disputes  the  com- 
plainants' title,  he  must  discover  his  own  title,  or  show 
wherein  the  complainants'  title  is  defective.  If  when  the 
titles  are  spread  before  the  court  upon  the  pleadings,  the 
court  can  see  that  there  is  no  valid  legal  objection  to  the 
complainants'  title,  there  is  no  reason  why  the  court  should 
not  proceed  to  order  the  partition.  The  first  ground  taken 
by  the  defendants  illustrates  this  principle. 

The  defendants  deny  that  by  the  deed  of  conveyance 
from  Benjamin  Carman  to  Theodosia  Lucas  and  Elizabeth 
Carman,  the  grantees  took  an  estate  as  tenants  in  com- 


OCTOBER  TERM,  1854  281 

Lucas  v.  King. 

mon.  They  were  evidently  under  a  misapprehension  as 
to  the  date  of  that  deed,  and  supposed  that  it  was  subse- 
quent to  the  act  of  the  4th  of  February,  1812.  The  an- 
swer insists  that  the  grantees,  by  that  deed,  took  as  joint 
tenants.  If  so,  then  the  complainants  have  no  title,  be- 
cause the  pleadings  admit  that  Elizabeth  Carman  survived 
Theodosia  Lucas,  and  that  the  complainants  claim  title 
by  virtue  of  this  deed  under  Theodosia  Lucas,  as  her  heirs 
at  law.  The  deed,  in  fact,  bears  date  several  months  sub- 
sequent to  the  passage  of  the  act.  The  act  of  February 
4,  1812,  declares,  "  that  no  estate  after  the  passage  of  the 
act  shall  be  considered  and  adjudged  to  be  an  estate  in 
joint  tenancy,  except  it  be  expressly  set  forth  in  the  grant 
or  devise  creating  such  estate ;  that  it  is  the  intention  of 
the  parties  to  create  an  estate  in  joint  tenancy,  and  not  an 
estate  of  tenancy  in  common."  The  deed  in  question 
grants  the  estate  to  Theodosia  Lucas  and  Elizabeth  Car- 
man, their  heirs  and  assigns,  for  ever.  They  took  the 
estate,  therefore,  as  tenants  in  common,  and  upon  the 
death  of  Theodosia  Lucas,  her  estate  descended  to  the 
complainants,  as  her  heirs  at  law.  Upon  a  question  of 
legal  title  so  plain  as  this,  there  can  be  no  propriety  in 
denying  the  complainants  the  relief  they  seek,  until  they 
shall  establish  their  title  at  law. 

But  there  are  other  serious  questions,  both  of  law  and 
of  fact,  involved  in  the  controversy  between  these  parties 
as  to  the  title.  Both  parties  claim  under  Benjamin  Car- 
man. The  defendants  claim  and  set  np  an  adverse  posses- 
sion of  more  than  thirty  years.  The  complainants  insist 
that  the  possession  was  not  adverse,  but  that  if  the  de- 
fendants and  those  under  whom  they  claim  have  been  in 
possession  the  length  of  time  alleged,  the  possession  was 
not  adverse,  but  was  the  possession  of  a  tenant  in  com- 
mon, and  under  the  same  title  by  which  the  complain- 
ants claim.  Botli  parties  have  taken  testimony  upon  this 
point,  and  the  settlement  of  it  involves  important  ques- 
tions of  law  and  fact. 

2  A* 


282  CASES  IN  CHANCERY. 

Lucas  v.  King. 

There  is  another  question  of  controversy.  When  Ben- 
jamin Carman  gave  to  Theodosia  Lucas  and  Elizabeth 
Carman  a  deed  for  the  premises,  they  executed  to  him 
their  joint  and  several  bond  to  secure  the  payment  of  six 
thousand  dollars,  and  to  secure  its  payment  executed  a 
mortgage  on  the  premises.  The  defendants  allege  that, 
on  the  27th  of  December,  1822,  Benjamin  Carman,  under 
his  hand  and  seal,  executed  a  release  to  Elizabeth  Car- 
man, by  which  he  released  to  her  all  actions,  rights  of  ac- 
tions, and  demands  whatsoever  upon  the  said  bond  of 
$6000,  and  that,  on  the  12th  September,  1826,  while  she 
was  in  the  possession  of  the  premises  in  controversy, 
Benjamin  Carman,  under  his  hand  and  seal,  assigned  and 
transferred  to  her  the  mortgage  and  mortgaged  premises, 
and  that  the  possession  has  been  held  under  this  mort- 
gage ever  since  ;  that,  by  the  statute,  the  equity  of  re- 
demption is  barred,  and  that  the  estate  is  absolute  in  the 
defendants,  who  have  held  under  this  mortgage  for  more 
than  twenty  years.  In  answer  to  this,  the  complainants 
say,  that  the  release  to  Elizabeth  Carman  operated  in  law 
as  a  release  to  both  obligors  ;  that  by  it,  the  debt  was  ex- 
tinguished, and  that  the  mortgage  being  only  security  for 
the  debt,  the  release  of  the  debt  released  the  premises  for 
the  mortgage,  and  that,  consequently,  the  subsequent 
assignment  of  the  mortgage  created,  no  title  to  the  mort- 
gage or  mortgaged  premises  as  against  Theodosia  Lucas, 
under  whom  the  complainants  directly  claim  title. 

I  have  stated  enough  to  show  that  the  complainants  are 
not  entitled  to  a  partition  until  the  title  is  established  at 
law. 

I  shall  retain  the  bill  to  give  the  complainants  an  op- 
portunity of  settling  the  title  at  law,  if  they  express  a 
desire  to  continue  the  suit  for  that  purpose. 

CITED  in  Carlisle  v.  Cooper,  6,  C.  E.  Or.  590. 


OCTOBER  TEEM,  1854. 283 

Heyde   v.   Enlers. 


CLAUSE  H.  Y.  D.  HEYDE  and  wife  vs.  HANS  EIILERS. 

The  witnesses,  by  whom  the  defendant  endeavored  to  prove  that  he  paid  part 
of  the  purchase  money  for  the  property  in  dispute,  relied  upon  conversa- 
tions had  with  the  complainants  and  upon  declarations,  they  had  made. 
The  evidence  was  not  satisfactory,  and  the  conversations  and  declarations 
admitted  of  a  different  construction. 

Held,  that  as  the  defendant  had  the  opportunity  of  stating,  in  his  answer, 
when,  where,  and  how  he  paid  any  part  of  the  purchase  money,  that  the 
answer  amounted  pretty  much  to  a  confession  of  the  case  made  by  the  bill. 


P.  Bentley  and  A.  0.  Zabriskie,  for  complainants. 
Hittyer  for  defendant. 

THE  CHANCELLOR.  The  only  question  in  controversy  is 
one  of  fact,  was  the  property  in  dispute  purchased  with 
the  money  of  Mr.  Heyde  ? 

The  evidence  in  the  cause  raises  some  doubt  whether 
some  considerable  portion  of  the  purchase  money  was  not 
the  defendant's  ;  but  taken  in  connection  with  the  answer, 
and  all  the  circumstances  connected  with  the  purchase, 
and  the  manner  of  payment  of  the  consideration,  my 
mind  has  been  entirely  relieved  of  all  doubt  as  to  the  real 
truth  of  this  case. 

The  only  pretence  which  the  defendant,  from  the  testi- 
mony, can  set  up,  is  that  he  paid  $500  of  the  purchase 
money.  The  witnesses,  by  whom  it  is  endeavored  to  prove 
this,  rely  upon  conversations  had  with  the  complainants, 
and  upon  declarations  they  have  made.  Their  evidence 
is  very  unsatisfactory,  and  the  conversations  and  declara- 
tions to  which  they  testify  admit  of  a  different  construc- 
tion from  that  which  the  witnesses  put  upon  them.  The 
defendant  had  the  opportunity  of  stating,  in  his  answer,, 
when,  where,  and  how  he  paid  any  part  of  the  purchase 
money.  The  answer  amounts  pretty  much  to  a  confession 
of  the  case  made  by  the  bill. 


284:  CASES  IN  CHANCERY. 

Holcombe  v.  Holcombe's  executors. 

There  are  some  moneys  which  the  defendant  has  ad- 
vanced in  connection  with  this  property,  and  these  should 
be  allowed  him.  As  he  has  denied  the  trust,  he  is  not 
entitled  to  any  compensation  for  services. 

Let  there  be  a  reference  to  a  master,  with  directions  to 
allow  the  defendant  all  payments  made  by  him  in  refer- 
ence to  the  property,  and  all  accounts  properly  chargeable 
against  it,  and  to  ascertain  what  payments  the  complain- 
ants must  make  in  order  to  relieve  the  defendant  from 
any  liabilities  he  may  have  incurred. 


CAROLINE  HOLCOMBE,  by  her  guardian,  vs.  THE  EXECUTORS 
OF  JOHN  HOLCOMBE,  deceased. 

Depositions  taken  on  a  preliminary  matter,  after  bill  filed,  and  before  the 
time  had  expired  for  any  further  pleading,  were  permitted  to  be  read  on 
the  final  hearing,  so  far  as  they  were  relevant  to  the  matters  in  issue,  and 
which  were  involved  in  the  preliminary  matter. 


After  the  bill  was  filed,  and  before  the  time  had  expired 
for  any  further  pleading,  a  preliminary  matter  arose  upon 
the  petition  of  the  complainants,  involving  in  a  measure, 
the  merits  of  the  case  as  presented  by  the  bill.  A  refer- 
ence was  made  to  a  master,  and  witnesses  were  examined, 
both  by  the  complainants  and  defendants,  upon  notice. 
The  examination  was  conducted  in  the  usual  way  upon 
direct  and  cross-examination.  Upon  the  evidence  so  taken, 
the  matter  submitted  by  the  petition  was  decided.  The 
defendants  then  answered  the  bill,  and  issue  was  taken  by 
replication. 

Joseph  F.  Randolph  now  moved  for  an  order  allowing 
the  depositions  taken  to  be  read  on  the  final  hearing. 

W.  Hoisted,  contra. 


285 


Holcombe  v.  Holcombe's  executors. 


THE  CHANCELLOR.  The  testimony  was  taken  in  this 
suit,  and  between  the  present  parties.  Jt  is  true  it  was 
taken  before  issue,  and  prior  to  the  answer  being  put  in. 
But  it  was  taken  upon  matters  involved  in  the  allegations 
of  the  bill,  and  which  the  defendants  must  necessarily 
have  admitted  or  denied  by  their  answer.  The  evidence 
was  taken  .upon  notice.  The  defendants  were  present  by 
their  counsel,  and  had  the  benefit  of  cross-examining  the 
witnesses.  It  is  not  shown  now  how  the  defendants  can 
be  prejudiced  by  permitting  the  evidence  to  be  read  on 
the  hearing. 

Upon  bill  and  cross-bill,  where  there  are  the  same  par- 
ties, and  the  evidence  is  applicable  to  the  issues  in  both 
suits,  in  a  hearing  upon  the  cross-bill,  the  testimony  taken 
in  the  original  suit  will  be  admitted.  The  court,  however, 
will  not  permit  testimony  taken  in  the  original  suit,  not 
relevant  to  the  issue  in  that  suit,  to  be  read,  although  it 
is  relevant  to  the  issue  made  by  the  pleadings  to  the  suit 
in  the  cross-bill.  It  was  so  decided  in  Underhill  v.  Van 
Cortlandt,  2  J.  G.  R.  355.  The  reason  given  in  that  case 
by  the  Chancellor,  is  that  the  opposite  party  is  not  sup- 
posed to  have  cross-examined  the  witness  with  any  other 
view  except  as  to  the  issue  upon  which  the  evidence  was 
taken. 

In  Lubier  v.  Genow  (2  Yes.  579),  upon  bill  and  cross-bill, 
depositions  were  taken  in  the  original  suit :  the  original 
bill  was  dismissed.  The  depositions  were  permitted  to  be 
read  in  the  suit  upon  the  cross-bill,  although  the  original 
bill  was  dismissed. 

I  can  see  no  valid  objection  to  permitting  the  depositions 
to  be  read,  so  far  as  they  are  relevant  to  the  matters  now 
in  issue,  and  which  were  involved  in  the  controversy  in 
which  they  were  taken. 

Let  an  order  be  made  to  read  the  depositions,  subject  to 
all  just  exceptions. 


286  CASES  IK  CHANCERY. 


McEwen  v.  McEwen. 


RACHEL  McEwEN  vs.  HENRY  McEwEN. 

After  petition  for  divorce,  on  the  ground  of  abuse  and  ill  treatment,  motion 
to  allow  a  counsel  fee  and  maintenance  pendente  lite  refused  against  a 
party  who  had  been  declared  a  lunatic  by  the  court. 

The  order  implies  a  default  and  neglect  of  a  moral  obligation  on  the  part  of 
the  defendant,  which  cannot  be  imputed  to  a  lunatic. 


Henry  McEwen,  the  defendant,  was  found  a  lunatic,  by 
inquisition,  dated  August  31,  1854,  which  found  that  he 
had  been  a  lunatic  "  for  one  year  last  past  and  upwards." 

The  complainant  filed  her  petition  for  divorce  August  26, 
1854.  The  grounds  alleged  for  divorce  are  abuse  and  ill 
treatment.  The  abuse  and  ill  treatment  is  alleged  to 
have  taken  place  at  various  times,  and  in  particular  in 
October,  1841,  and  in  March  last. 

Mr.  James  Wilson  now  moved,  on  behalf  of  the  com- 
plainant, that  an  order  be  made  to  allow  a  counsel  fee  and 
maintenance  pendente  lite. 

THE  CHANCELLOR.  I  think-  it  would  be  improper  to  make 
the  order.  It  would  be  made  against  a  party  who  has  been 
declared  a  lunatic  by  this  court.  The  order  implies  a  de- 
fault and  neglect  of  a  moral  obligation  on  the  part  of  the 
defendant.  This  ought  not  to  be  imputed  to  a  lunatic. 
The  embarrassment  in  enforcing  such  an  order  is  also  an 
.objection  to  making  it. 

The  motion  is  denied. 


OCTOBER  TERM,  1854.  287 


Clarke  v.    Johnston. 


GRACE  T.  CLARKE  and  others  vs.  ALEXANDER  M.  JOHNSTON 
and  others. 

This  court  has  concurrent  jurisdiction  with  the  Orphans  Court  in  the  settle- 
ment of  accounts  of  executors  and  administrators.  It  may  assume  this 
jurisdiction  to  the  exclusion  of  the  Orphans  Court  in  any  case  where  the 
ends  of  justice  may  seem  to  require  it.  If  any  progress  has  been  made  in 
the  Orphans  Court  in  the  settlement  of  an  account,  the  Court  of  Chancery 
ought  not  to  interfere  with  that  tribunal,  unless  there  is  shown  some  good 
cause  for  its  doing  so. 


James  Wilson,  for  complainants. 
W.  L.  Dayton,,  for  defendants. 

THE  CHANCELLOR.  The  complainant,  Grace  T.  Clarke, 
is  the  mother  of  Doctor  John  T.  Clarke,  deceased.  Eliza- 
beth Cowen,  Phebe  Augusta  Clarke,  and  Virginia  Clarke 
(who,  with  the  husband  of  Elizabeth  Cowen,  are  the  other 
complainants  in  the  cause,)  are  sisters  of  the  deceased. 
They  have  filed  this  bill  against  the  defendants  for  an  ac- 
count of  the  estate  of  Doctor  Clarke,  which  came  into 
the  hands  of  Caroline  Johnston,,  as  the  administratrix  of 
Doctor  Clarke.  She  being  the  widow  of  the  deceased, 
took  out  letters  of  administration  before  the  surrogate  of 
the  county  of  Mercer.  Afterwards  she  intermarried  with 
the  defendant  Alexander  M.  Johnston.  The  bill  alleges 
that  there  has  been  great  delay  in  the  settlement  of  the 
estate,  and  that  although  two  years  had  then  elapsed  since 
letters  of  administration  were  issued,  the  administratrix 
had  not  exhibited  any  accounts  for  settlement. 

The  defendants,  in  answering  the  bili,  give  an  account 
of  all  the  effects  that  had  come  to  the  hands  of  the  ad- 
ministratrix and  an  account  of  the  disbursements.  As  a 
reason  why  the  estate  has  not  been  settled,  the  defend, 
ants  state  that  there  is  a  trust  fund  belonging  to  the 


288  CASES  EST  CHANCERY. 

Clarke  v.  Johnston. 

estate,  which  is  held  in  the  state  of  Pennsylvania  by  the 
Girard  Life  Insurance  and  Annuity  and  Trust  Company 
of  Philadelphia,  which  they  allege,  through  the  inter- 
ference of  the  complainants,  has  not  come  to  the  hands 
of  the  administratrix.  They  submit  to  account  under  the 
direction  of  this  court. 

The  complainants  filed  a  replication.  One  witness  only 
was  examined.  The  object  of  taking  his  testimony  was 
to  show  the  fact,  alleged  in  the  answer,  that  it  was  through 
the  interference  of  the  complainants  that  the  trust  fund 
mentioned  had  not  been  paid  over  to  the  administratrix. 

The  only  question  before  the  court,  at  this  time,  is 
whether  the  defendants  must  be  decreed  to  account. 

On  behalf  of  the  defendants,  it  is  insisted,  that  an  ac- 
count ought  not  to  be  decreed,  because  letters  of  admin' 
istration  were  taken  out  before  the  surrogate,  and  the  Or- 
phans Court  has  therefore  jurisdiction  of  the  cause. 

This  court  has  concurrent  jurisdiction  with  the  Orphans 
Court  in  the  settlement  of  accounts  of  executors  and  ad- 
ministrators. It  may  assume,  this  jurisdiction,  to  the  ex- 
clusion of  the  Orphans  Court,  in  every  case  where  the  ends 
of  justice  may  seem  to  require  it.  If  any  progress  has 
been  made  in  the  Orphans  Court  in  the  settlement  of  the 
accounts,  the  Court  of  Chancery  ought  not  to  interfere 
with  that  tribunal,  unless  there  is  shown  some  good  cause 
for  its  doing  so.  This  was  the  view  taken  by  the  Chan 
cellor  in  the  case  of  Salter  et  al.  v.  Williamson,  admimstra* 
tor,  (1  G.  C.  R.  480),  and  I  think  a  correct  one. 

In  the  present  case,  the  administratrix  has  done  no  more 
than  to  take  out  letters  before  the  surrogate.  She  has  not 
even  filed  an  inventory  of  the  estate.  By  putting  in  an 
answer,  the  settlement  of  the  estate  has  progressed  much 
further  than  it  has  in  the  Orphans  Court.  We  have  the 
inventory,  the  appraisement,  and  an  account  of  the  dis- 
bursements. There  is  manifest  propriety,  under  these  cir- 
cumstances, in  this  court's  continuing  the  cause. 

This  being  the   case,  the  complainants,  as  a  matter  of 


289  OCTOBEE  TERM,  1854. 


Clarke  r.  Johnston. 


Bourse,  are  entitled  to  an  account.  Under  our  statute,  as 
the  next  of  kin  of  the  deceased,  they  are  entitled  to  one 
half  of  the  estate. 

On  the  argument,  the  question  was  very  fully  discussed, 
as  to  who  is  entitled  to  the  trust  fund,  and  as  to  whether 
the  defendants  can  have  a  decree  for  distribution,  so  as  to 
draw  all  the  estate  out  of  the  hands  of  the  administratrix 
before  the  right  to  that  fund  is  determined.  But  these 
questions  cannot  properly  come  up  now.  The  only  ques- 
tion at  present  is,  must  the  administratrix  account  ?  And 
as  to  this  there  can  be  no  doubt.  The  question  of  distribu- 
tion is  distinct  from  the  present,  and  comes  up  in  another 
stage  of  the  cause. 

There  must  be  a  reference  to  a  master,  with  the  usual  de- 
cree for  that  purpose. 

CITED  in  Frey  v.  Demarest,  I  C.  E.  Gr.  239  :  Search's  Admr.  v.  Search^ 
Admr's  12  C.  E.  Or.  140. 


VOL.  u.  2a 


CASES 

j 

ADJUDGED  IS 

THE   COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW  JERSEY, 

FEBKUAKY  TEEM,  1855. 

WILLIAM  HALSTED  vs.  JOHN  DAVISON  et  al. 


At  law,  a  judgment  and  execution  constitutes  no  lien  upon  a  mere  equitable 
interest. 

A  court  of  equity  may  aid  the  judgment  creditor  in  reaching  that  interest, 
and  secure  to  him'  a  pref  erence;  to  which  by  diligence  he  has  entitled  him- 
self. 

A  judgment  and  execution  creditor  cannot  subject  a  property,  in  which  an 
equitable  interest  had  been  secured  to  his  debtor  by  declaration  of  trust, 
to  the  payment  of  the  judgment  debt.  Where  there  has  been  no  fraud  in 
the  transaction,  no  property  of  the  debtor  covered  up  by  it,  no  creditor  in- 
jured ;  where  the  debtor  has  never  paid  any  part  of  the  consideration 
money,,  or  ever  had  any  legal  title  to  the  property  in  question. 

If  the  debtor  had  ever  paid  any  money  upon  the  property  to  the  extent  of 
such  payment,  the  court  might  subject  the  property  to  the  execution,  on 
the  ground  of  its  being  the  debtor's  own  earnings. 

As  a  general  principle,  when  an  execution  creditor  has  acquired  an  equitable 
lien,  it  cannot  be  destroyed  or  impaired  by  the  voluntary  act  of  the  debtor 
or  his  trustee. 

An  equitable  lien  may  be  lost  by  negligence  and  unreasonable  delay. 


W.  Hoisted  and  0.  S.  Hoisted,  for  complainant. 
W.  L.  Dayton,  for  defendant. 


FEBRUARY  TERM,  1855.  291 


Hoisted  v.  Davison. 


THE  CHANCELLOR.  On  the  first  of  March,  1832,  John 
Davison  and  Garret  D.  Wall  entered  into  a  verbal  agree- 
ment, by  which  Garret  D.  Wall  agreed  to  let  Davison  into 
the  possessson  of  the  Fithian  mill,  as  it  is  called,  in  the 
city  of  Trenton,  upon  the  following  terms :  Davison  was 
to  fit  it  up  as  a  paper  mill,  and  pay  as  rent  the  sum  of 
three  hundred  dollars  yearly.  Wall  agreed,  that  if  at 
any  time  Davison  would  pay,  or  secure  to  be  paid,  as  the 
purchase  money,  the  sum  of  five  thousand  dollars,  then 
that  he,  Wall,  would  convey  to  him  the  mill.  It  was 
agreed  that  whatever  machinery  was  put  in  the  mill 
should  remain  there  as  security  for  the  rent.  Davison 
went  into  possession,  and  expended  some  three  or  four 
thousand  dollars  in  putting  the  mill  in  operation. 

On  the  23d  of  February,  1841,  Wall,  at  the  request  of 
Davison,  conveyed  the  mill  to  the  defendant,  Henry  P. 
Welling,  for  the  consideration  of  $5000,  which  Welling 
secured  by  his  own  bonds  and  by  mortgages  on  the  pre- 
mises. On  the  23d  of  March,  1841,  Welling  executed  to 
Davison  a  deed  of  trust,  by  which,  after  setting  out  the 
conveyance  from  Wall,  the  manner  of  securing  the  pur- 
chase money,  that  it  was  expressly  agreed  between  Wel- 
ling and  Davison,  at  the  time  of  the  purchase,  that  if  the 
said  Davison  should  well  and  truly  pay  and  satisfy  tho 
bonds  and  mortgages  given  by  Welling  as  the  considera- 
tion, or  indemnify  and  save  harmless  the  said  Welling 
from  all  loss  and  damage  by  reason  of  his  liability  upon 
the  same,  &c.,  he,  the  said  Welling,  would  hold  the  said 
premises  in  the  following  trust :  first,  that  the  said  Davi- 
son should  enjoy  the  premises,  for  his  natural  life,  for  the 
consideration  of  one  dollar  annually,  that  in  case  of  the 
death  of  the  said  Davison,  the  said  premises  should  be 
sold  at  public  sale,  and  the  proceeds  applied — first,  to  tho 
payment  of  any  balance  of  principal  and  interest  which 
might  remain  due  upon  the  said  bonds  and  mortgages, 
and  any  costs,  &c.,  incurred  by  said  Welling  in  conse- 
quence of  his  liability ;  second,  to  pay  to  Lathrop  &  Irwiii 


292  CASES  IN  CHANCERY. 


Halsted  v.  Davison. 


all  such  debts  which  might,  at  the  time  .of  the  death  of 
said  Davison,  be  due  from  him  to  them,  or  either  of  them ; 
third,  to  pay  all  debts  which  might  at  the  time  of  the 
death  of  said  Davison  be  due  to  any  person  or  persons  of 
the  city  of  Trenton;  fourth,  the  surplus,  if  any,  to  be 
paid  over  to  the  widow  and  children  of  said  Davison. 
Therefore  it  was .  declared,  that  the  said  Welling  did  ratify 
and  confirm  the  said  agreement,  and  did  hold  the  said 
property,  &c.,  in  trust,  &c. 

In  1846,  this  declaration  of  trust  was  destroyed  by  the 
mutual  consent  of  the  parties.  It  was  destroyed  in  con- 
sequence of  Davison's  hopeless  insolvency,  and  the  mani- 
fest impossibility  of  his  fulfilling  the  conditions  which 
entitled  him  to  the  benefits  of  the  trust. 

The  complainant  is  a  judgment  and  execution  creditor 
of  Davison.  The  object  of  the  bill  is  to  subject  the  mill 
property  to  the  payment  of  the  judgment  debt. 

In  the  first  place,  it  is  alleged,  that  the  conveyance  to 
Welling  was  fraudulent,  £nd  was  made  to  him  for  the 
purpose  of  defrauding  Davison's  creditors.  If  this  is  so, 
the  property  must  be  subjected  to  the  payment  of  the 
complainant's  judgment  and  execution.  The  court  may 
do  this  with  or  without  remunerating  Welling  for  his  ex- 
penditures, as  shall  be  deemed  equitable  under  the  cir- 
cumstances and  most  consonant  with  justice.  If  the 
evidence  is  such  as  to  establish  actual  and  direct  fraud, 
then  the  conveyance  should  be  declared  absolutely  null 
and  void ;  but  where  it  is  only  constructively  fraudulent, 
it  will  stand  as  security,  so  far  as  to  reimburse  and  in- 
demnify the  grantee. 

I  do  not  think  the  evidence  will  justify  the  conclusion, 
that  the  transaction  between  Welling  and  Davison  was  a 
fraud  as  to  Davison's  creditors.  Davison  was  an  old  man, 
and,  as  appears  from  the  business  transactions  between 
him  and  the  complainant,  without  means  to  do  business. 
He  had  been  carrying  on  the  same  business  in  another 
mill  through  the  aid  of  the  complainant,  the  result  of 


FEBRUARY  TERM,  1855.  293 


Halstedr.  Davison. 


which  was  an  indebtedness  to  the  complainant  of  up- 
wards of  three  thousand  dollars.  When  he  rented  this 
mill  of  Wall,  under  an  agreement  that  he  was  to  have  a 
title  when  he  paid  or  secured  $5000,  he  had  just  been  sold 
out  by  the  sheriff,  and  the  complainant  then  had  a  judg- 
ment against  him  of  upwards  of  $3000.  After  having 
been  in  possession  of  the  mill  some  nine  years,  his  embar- 
rassment had  greatly  increased.  The  whole  period 
seemed  to  be  a  continual  struggle  to  keep  the  wheels  of 
the  mill  in  motion.  The  complainant  had  recovered  an- 
other judgment,  of  upwards  of  $1100,  for  a  new  debt, 
contracted  by  Davison  in  his  efforts  to  carry  on'  the  paper 
mill.  The  complainant  had  taken  out  six  executions 
against  his  debtor,  and  there  can  be  no  doubt  but  that 
what  Davison  stated  in  his  testimony  is  true,  that  he 
hardly  had  sufficient  to  buy  bread,  and  would  have  suf- 
fered but  for  the  kindness  of  some  of  his  friends.  In  this 
condition  he  was  informed  by  Wall,  that  he,  Wall,  was 
embarrassed,  and  must  have  the  property  settled  for  in 
some  way.  Davison  could  not  buy  the  property,  for  he 
h  id  not  the  means  to  buy  his  daily  bread.  He  was  thus 
compelled  to  abandon  the  purchase.  It  was  under  such 
circumstances  that  the  defendant,  Welling,  purchased  the 
property  ;  and  after  giving  his  own  personal  obligations 
for  the  purchase  money,  executed  to  Davison  the  declara- 
tion of  trust.  Davison  then  made  another  struggle  for 
li  fe.  He  could  not  make  enough  to  pay  the  rent  or  keep 
the  mill  running.  He  says  he  did  not  make  enough  to 
pay  the  hands.  In  1816,  lie  owed  Welling  upwards  of  six 
hundred  dollars  for  rent.  Welling  had,  in  the  mean  time, 
made  large  advances  of  money  to  refit  the  mill  with  ma- 
chinery, and  had  paid  debts  for  Davison  to  an  amount 
exceeding  $2000.  At  this  time,  $5000  was  as  much  as 
the  mill  and  machinery  were  worth.  Thus  it  appears  that 
the  creditors  had  lost  nothing,  but  that  Welling  had  ac- 
tually embarrassed  himself  in  endeavoring  to  help  Davi- 
son, and  put  him  in  a  way  to  pay  his  debts.  In  the  midtt 

2i»* 


294  CASES  IN  CHANCEKY. 


Hoisted  v.  Davison. 


of  these  embarrassments,  another  judgment  was  about  to 
be  entered  up  against  the  old  man,  and  it  was  said  that 
the  declaration  of  trust  might  make  trouble.  Davison 
went  to  his  principal  creditor,  the  complainant,  and  con- 
sulted him  in  reference  to  the  declaration  of  trust,  and 
the  complainant  told  him  there  was  a  question  whether  a 
judgment  creditor  might  not  sell  his  interest  in  the  pro- 
perty. It  was  then  that  the  declaration  of  trust  was 
destroyed. 

I  cannot  see  any  fraud  in  this  transaction.  It  really 
seems  to  have  been  a  matter  of  charity,  upon  the  part  of 
Welling,  to  afford  to  Davison  some  way  of  living.  No  cre- 
ditor was  injured  by  it.  There  was  no  property  of  Davison 
covered  up  in  the  name  of  Welling.  Davison  never  had 
any  title  in  the  property,  nor  did  he  ever  pay  one  cent 
towards  the  consideration  money.  If  Davison  had  origi- 
nally paid  any  part  of  the  purchase  money,  or  if,  after  the 
conveyance  to  Welling  he  had  paid  it,  or  by  expenditures 
had  enhanced  the  value  of  the  property,  there  might  be 
seme  foundation  for  the  charge  of  fraud.  There  was  no- 
thing done  by  either  of  the  parties  that  looked  like  a  dis- 
position to  defraud  a  creditor.  The  complainant  was  the 
principal  creditor.  Nothing  was  concealed  from  him.  No 
creditor  was  defrauded,  or  could  be  defrauded  by  the 
transaction.  It  is  true  the  motive  for  giving  up  the  decla- 
ration of  trust  was  the  anticipated  difficulty  from  judg- 
ment creditors.  But  if  such  difficulty  was  apprehended, 
was  it  not  right  and  reasonable  that  Welling  should  be  re- 
lieved from  further  trouble  ?  Davison  was  a  mere  volun- 
teer, and  it  was  a  matter  of  duty,  as  well  as  of  right,  that 
he  should  not  unnecessarily  involve  an  innocent  person 
who  had  befriended  him. 

But  the  complainant  asks  relief  upon  another  ground. 
He  says  Davison  had  an  interest  in  this  property  ;  it  was 
held  in  trust  for  him,  and  that  that  interest  the  complain- 
ant is  entitled  to  have  applied  to  satisfy  his  execution. 

Davison  never  had  the  legal  title  to  this  property.    At 


FEBKUAKY  TEEM,  1855.  295 


Hoisted  v.  Davison. 


law,  a  judgment  and  execution  constitutes  no  lien  upon  a 
mere  equitable  interest.  A  court  of  equity  may  aid  the 
judgment  creditor  in  reaching  that  interest,  and  secure  to 
him  a  preference  to  which  by  his  diligence  he  has  entitled 
himself. 

On  the  16th  of  May,  1829,  the  complainant  recovered 
judgment  against  Davison.  In  May,  1834,  he  caused  an 
execution  to  be  levied  upon  all  the  defendant's  interest  in 
the  mill.  "What  interest  did  the  defendant  then  have  ? 
He  was  then  the  tenant  of  Wall,  who  had  agreed  with 
him,  that  if  he  would  pay  him  $5000,  he  should  have  a 
legal  title  to  the  property.  I  said  the  agreement  was  a 
verbal  one,  but  tho  evidence  leaves  it  uncertain.  But  ad- 
mit it  was  in  writing,  and  was  an  agreement  the  specific 
performance  of  which  the  defendant  could  enforce.  Ad- 
mit that  the  plaintiff  in  the  judgment  could  have  come 
into  a  court  of  equity  and  have  taken  the  place  of  the  de- 
fendant, and  have  acquired  his  interest  by  enforcing  the 
specific  performance  of  the  agreement,  for  I  am  not  dis- 
posed at  this  day,  when  the  legislature  is  aiding  by  law, 
in  every  way,  execution  creditors  to  reach  the  property  of 
their  debtors,  to  shorten  the  arm  of  this  court  in  favor  of 
a  creditor  asking  its  assistance.  Then,  what  equity  had 
the  execution  creditor?  He  certainly  had  no  more  than 
the  debtor  himself.  The  debtor  had  not  paid  a  dollar ;  ho 
had  not  paid  up  his  rent  even;  so  that  he  was  not  in  fact 
in  a  position  to  demand  a  specific  performance.  Were 
Wall's  hands  tied  up  by  the  execution?  Was  he  to  see 
this  property  crumble  to  ruin  before  his  eyes,  and  because 
he  had  agreed  to  convey  the  property  upon  certain  condi- 
tions, which  had  never  been  performed,  wait  the  pleasure 
of  the  execution  creditor  to  assume  the  position  of  tho 
alleged  vendee?  The  complainant  slept  over  his  rights 
for  nine  years,  and  then  Wall  conveyed  the  property  to 
Welling.  He  then  delayed  six  years  longer  before  he  filed 
his  bill.  A  court  of  equity  will  exercise  a  sound  legal 
discretion  in  decreeing  a  specific  performance.  To  deter- 


296  CASES  IN  CHANCERY. 


Halsted  v.  Davison. 


mine  that  this  execution  is  entitled  to  the  interest  which 
Davison  had  in  the  property,  I  must  declare  that  Wall 
had  no  right  to  make  the  sale  to  Welling,  and  that  the 
complainant's  delay  of  fifteen  years  was  reasonable.  This 
would  not  only  be  aiding  the  creditor,  but  be  making  the 
interest  of  all  others  subservient  to  his,  no  matter  at  what 
sacrifice.  Wall  had  a  perfect  right  to  make  the  convey- 
ance, and  by  it  the  complainant  lost  all  equitable  lien,  if 
he  had  any,  in  the  property  by  his  negligence  and  delay. 

But  the  complainant  obtained  another  judgment  in 
1836,  and  caused  an  execution  to  be  issued  upon  it  in 
1842,  and  an  alias  execution  in  1846.  The  first  execution 
was  issued  while  the  declaration  of  trust  was  in  existence ; 
the  second  execution  was  issued  after  the  declaration  was 
destroyed.  The  complainant  insists  that  the  destruction 
of  the  declaration  did  not  impair  his  rights,  which  had  be- 
come vested.  As  a  general  principle,  where  an  execution 
creditor  has  acquired  an  equitable  lien,  it  cannot  be  de- 
stroyed or  impaired  by  the  voluntary  act  of  the  debtor  or  of 
his  trustee. 

When  Welling  took  the  deed  in  1832,  he  paid  the  con- 
sideration money.  He  executed  a  declaration  of  trust  to 
the  effect,  that  if  Davison  would  repay  him  the  purchase 
money  with  interest,  and  indemnify  him  for  all  costs, 
charges,  and  expenses,  then  that  Davison  might  hold  the 
property  during  his  life  at  an  annual  rent  of  one  dollar; 
that  at  Davison's  death  Welling  would  sell  the  property, 
and  pay  certain  specified  debts,  and  the  surplus  he  would 
hold  for  the  benefit  of  Davison's  wife  and  children.  The 
complainant  knew  of  this  trust.  Davison  remained  in 
possession  for  six  or  seven  years.  He  was  not  only  unable 
to  reimburse  Welling,  but  allowed  upwards  of  one  thou 
sand  dollars  interest  money  to  accumulate.  He  contracted 
debts  to  an  amount  of  upwards  of  two  thousand  dollars, 
which  Welling  was  obliged  to  pay.  Welling,  for  his  own 
safety  and  security  and  for  the  preservation  of  the  pro 
perty,  was  compelled  to  make  expenditures  of  upwards 


FEBRUARY  TERM,  1855.  297 


Halsted  v.  Davison. 


of  six  thousand  dollars  upon  it.  The  creditor  stood  by 
from  1842  to  1846.  He  sees  Davison  abandon  all  hope  of 
retaining  any  interest  in  the  property.  He  waits  until 
August,  1847,  and  then  files  this  bill.  I  repeat  again,  the 
aspect  of  this  case  would  be  changed  if  any  of  Davison's 
money  was  in  the  property.  But  he  was  a  mere  volunteer, 
and  had  not  advanced  a  dollar  in  the  creation  or  preser- 
vation of  the  trust. 

Buf;  again,  the  trust  not  being  void  and  fraudulent  as 
to  creditors,  the  complainant  can  only  claim  the  interest 
of  the  debtor  in  trust.  What  is  that  interest  ?  It  is 
nothing  more  than  the  privilege,  after  the  trustee,  is  re- 
imbursed, of  holding  the  property  during  life  at  an  annual 
rent  of  one  dollar,  But  this  the  complainant  is  unwilling 
to  take.  He  claims  the  whole  property  after  the  trustee's 
claims  upon  it  are  satisfied.  As  the  trustee  had  a  right  to 
create  the  trust,  the  trust  property  being  the  creature  of  his 
own  funds  the  creditor,  if  he  can  take  at  all,  must  take  iu 
conformity  to,  and  not  in  violation  of  the  trust. 

I  do  not  mean  to  countenance  the  idea,  that  a  man  who 
is  embarrassed  in  his  circumstances  may  enter  into  busi- 
ness, and  purchase  property,  and  make  arrangements  for 
its  future  security  by  covering  it  up  in  the  nature  of  a 
trust.  That  raises  another  question,  one  we  have  already 
considered,  a  question  of  fraud.  If  the  debtor  had  ever 
paid  any  money  upon  this  property,  to  the  extent  of  such 
payment  the  court  might  subject  the  property  to  the  ex- 
ecution, on  the  ground  of  its  being  the  debtor's  own  earn- 
ings, to  which  his  creditors  are  entitled. 

There  is  no  evidence  in  the  case  to  justify  the  belief 
that  this  property  would  bring  enough  to  reimburse  Wel- 
ling for  his  outlays.  To  subject  him  to  an  account  under 
such  circumstances,  in  the  effort  to  reach  any  equitable 
interest  Davison  might  have,  would  be  oppressive,  and  I 
can  see  nothing  in  the  case  to  warrant  it. 

As  to  the  personal  property,  in  regard  to  which  the  com- 
plainant asks  the  interference  of  the  court,  if  it  belongs 


298  CASES  IN  CHANCEKY. 

Jones   v.  Naughright. 

to  the  complainant  as  owner,  as  he  has  endeavored  to  show, 
no  aid  of  this  court  is  required ;  the  complainant  has  his 
remedy  at  law. 

In  any  view  I  have  been  able  to  take  of  the  case,  I  do 
not  see  that  the  complainant  is  entitled  to  relief.  This 
bill  must  be  dismissed  with  costs. 


SAMTJEL  JONES  vs.  JOHN  NATTGHRIGHT  and  others. 

A  debtor  has  a  perfect  right  to  prefer  a  creditor,  and  he  may  make  that  pret- 
ence by  a  mortgage,  as  well  as  by  any  other  mode  of  security.  The  mort- 
gage will  be  a  valid  encumbrance  on  the  premises.  , 

Money  for  which  a  judgment  is  confessed  may  be  honestly  due,  and  yet  the 
judgment  not  bona  fide.  If  it  was  confessed  not  for  the  purpose  of  securing 
the  debt,  but  as  a  fraudulent  cover  to  the  property,  and  to  protect  it  from 
another  creditor,  it  should  be  set  aside  as  fraudulent,  But  to  establish  the 
fraud  in  such  a  case,  the  proof  of  it  should  be  clear  and  satisfactory. 

It  would  require  very  strong  and  convincing  circumstances  unexplained  to  jus- 
tify the  inference  that  a  judgment  was  fraudulent,  when  it  was  proved, 
beyond  doubt,  that  the  debt  was  justly  and  honestly  due. 

The  bill  was  filed  on  the  6th  of  May,  1851.  John  Naugh- 
right answered  the  bill.  The  other  defendants  did  not 
answer.  Depositions  were  taken  on  both  sides.  The  case 
made  by  the  bill  is  this : 

On  the  3d  of  March,  1848,  John  Frone  and  wife  executed 
a  mortgage  upon  certain  lands  in  the  county  of  Morris, 
the  subject  of  this  suit,  to  secure  the  sum  of  $400.  On 
the  4th  of  March,  1848,  John  Frone  confessed  a  judg- 
ment in  the  Circuit  Court  of  the  county  of  Morris  for  the 
sum  of  $573.52,  to  Eve  Frone,  his  mother.  The  said  land 
was  sold  by  the  sheriff,  and  was  purchased  by  Eve  Frone, 
for  the  sum  of  $300  over  and  above  encumbrances.  In 
May,  1848,  the  complainant  recovered  a  judgment  against 
the  said  Frone  for  $359.50  and  $28.30  costs  of  suit,  and 
under  his  judgment,  caused  the  sheriff  to  sell  the  same 
premises,  and  became  the  purchaser  thereof.  On  the  8th 


FEBRUARY  TEEM,   1855.  299 

Jones  v.  I^aughright. 

of  December,  1848,  Eve  Frone  conveyed  the  premises  to 
the  defendant,  John  !Naughright,  in  consideration  of  the 
sum  of  $100,  subject  to  the  mortgage  given  by  Frone  to 
John  Naughright  for  the  sum  of  $400,  and  also  subject  to 
a  mortgage  given  by  Frone  to  John  Sharp,  to  secure  a 
debt  of  $600.  The  bill  admits  the  validity  of  the  Sharp 
mortgage,  but  alleges  that  the  mortgage  by  Frone  to 
Naughright  is  fraudulent,  and  was  made  to  defeat  the  com- 
plainant, as  a  creditor  of  Naughright.  It  also  charges, 
that  the  judgment  confessed  by  John  Frone  to  Eve  Frone 
was  fraudulent  and  void  as  against  creditors,  and  was  con- 
trived between  said  John  Frone,  Eve  Frone,  and  John 
Naughright,  and  to  prevent  the  complainant  from  collect- 
ing his  said  debt  of  the  said  John  Frone  ;  and  it  charges, 
that  the  sale  by  Eve  Frone  to  John  Naughright  was  a  pre- 
tended sale,  made  at  the  procurement  of  John  Frone,  and 
without  any  consideration.  The  bill  prays  that  all  these 
conveyances  may  be  set  aside,  as  fraudulent  as  against 
him,  except  the  Sharp  mortgage,  which  he  offers  to  pay, 
and  that  the  defendants  be  decreed  to  deliver  up  to  the 
court  the  possession  of  the  premises. 

T.  Little,  for  complainant. 

H.  A.  Ford  andJ.  W.  Miller,  for  defendant. 

THE  CHANCELLOR.  The  complainant,  under  a  judgment 
and  execution  in  his  favor  against  John  Frone,  purchased 
about  forty  acres  of  land  in  the  county  of  Morris,  and 
the  same  was  conveyed  to  him  by  the  sheriff  of  the 
county.  The  defendant,  John  Naughright,  holds  a  mort- 
gage on  the  same  property  to  secure  the  principal  sum  of 
six  hundred  dollars  and  Interest,  which  was  given  by  John 
Frone  to  John  Sharp,  and  which  was  afterwards  assigned 
to  John  Naughright.  John  Naughright  holds,  also,  another 
mortgage  on  the  same  premises,  executed  to  him  by  John 
Frone  to  secure  the  principal  sum  of  $400  and  interest. 
John  Frone  confessed  a  judgment  subsequent  to  these  mort 


300  CASES  IN  CHANCERY. 

Jones  u.  Naughright. 

gages,  to  his  mother,  Eve  Frone,  for  the  sum  of  $573.52 
of  damages,  and  $20.02  costs  of  suit.  Under  this  judg- 
ment, the  same  property  was  sold  by  the  sheriff,  and  was 
purchased  by  Eve  Frone  for  the  sum  of  $300,  and  she 
took  the  sheriff's  deed.  Yery  shortly  after,  Eve  Frone 
conveyed  the  property  to  the  defendant,  Naughright,  for 
the  consideration  of  one  hundred  dollars.  The  complain- 
ant's deed  and  judgment,  under  which  he  holds,  are  sub- 
sequent in  point  of  time  to  both  mortgages,  and  also  to 
the  judgment  confessed  to  Eve  Frone  and  to  the  deed 
under  which  Naughright  holds.  The  bill  alleges  that  the 
mortgage  by  Frone  to  Naughright,  and  the  confessed 
judgment,  and  the  deed  from  Eve  Frone,  are  fraudulent, 
and  were  contrived  by  John  Frone,  Eve  Frone,  and  John 
Naughright  to  defraud  the  complainant,  as  a  creditor  of 
John  Frone,  and  to  protect  and  cover  up  the  property. 

The  answer  of  John  Naughright  is  a  full  denial  of  the 
charges  of  fraud  made  in  the  bill.  The  burthen  of  proof 
is,  therefore,  upon  the  complainant,  and  the  only  question 
is,  whether  the  fraud  is  made  out  by  the  evidence  ? 

And  first,  as  to  the  alleged  fraudulent  mortgage.  The 
allegation  of  the  bill  is,  that  at  the  time  the  mortgage  was 
executed,  John  Frone  was  not  indebted  to  the  defendant, 
but  that  the  defendant  was  at  that  time  security  for  John 
Frone  for  $250,  and  that  the  mortgage  was  made  to  in- 
demnify the  defendant  against  any  loss  or  damage  he  might 
sustain  as  such  security,  and  that  no  damage  or  loss  has 
been  sustained  by  the  defendant. 

The  defendant  satisfactorily  proves,  that  prior  to  the 
execution  of  the  mortgage,  he  was  security  for  debts  of 
Frone  to  the  amount  of  the  consideration  of  the  mort- 
gage, and  that  he  paid  those  debts,  and  that  the  debts 
were  bonafide  debts,  and  which,  as  security,  the  defendant 
was  bound  to  pay.  There  is  no  evidence  offered  by  the 
complainant  to  sustain  his  bill  in  this  particular.  He  does 
prove,  that  at  the  time  the  mortgage  was  executed,  the 
defendant  knew  of  the  existence  of  the  complainant's 


FEBRUARY  TERM,  1855.  301 

Jones  v.  Naughright. 

debt  against  Frone.  This  fact  in  no  wise  impeaches  the 
defendant's  mortgage.  He  had  a  perfect  right  to  secure 
himself  in  this  way,  although  he  knew  at  the  time  that 
the  complainant  was  prosecuting  his  claim  at  law,  and  that 
the  effect  of  it  would  be  to  defeat  the  complainant  in 
realizing  his  debt.  A  debtor  has  a  perfect  right  to  pre- 
fer a  creditor,  and  he  may  make  that  preference  by  a 
mortgage,  as  well  as  by  any  other  mode  of  security.  The 
mortgage  is  valid  subsisting  encumbrance  upon  the  prem- 
ises. 

As  to  the  judgment.  The  bill  charges,  that  at  the  time 
the  judgment  was  confessed,  Eve  Frone  was  a  very  aged 
and  infirm  woman,  and  was  living  in  the  family  of  her 
son  John,  and  was  dependant  upon  her  children  for  her 
support  and  maintenance  ;  that  at  the  time  the  judgment 
was  confessed,  her  son  did  not  owe  her  the  money,  but 
that  the  judgment  was  concocted  by  John  Frone,  John 
Naughright,  and  herself,  for  the  purpose  of  fraudulently 
covering  up  the  property  of  John  Frone  ;  that  the  judg- 
ment was  not  confessed  at  the  request  of  the  said  Eve 
Frone,  but  by  the  solicitation  of  her  son  and  John  Naugh- 
right. As  further  evidence  of  the  fraud,  it  is  alleged  that 
the  property,  both  real  and  personal,  was  struck  off  to  her 
upon  the  bids  of  other  persons,  but  not  at  her  request ; 
that  after  the  sale,  John  Frone  remained  in  possession, 
and  that  she  purchased  the  real  estate  for  the  sum  of  three 
hundred  dollars  over  and  above  the  encumbrances,  and 
immediately  afterwards  sold  it  for  the  sum  of  one  hundred! 
dollars. 

I  think  it  is  very  clearly  proyed  that  the  sum  for  which 
the  judgment  was  confessed  was  a  debt  justly  and  honestly 
due  and  owing  from  John  Frone  to  his  mother,  and  that 
the  circumstances  upon  which  the  complainant  relies  to 
make  out  that  the  judgment  was  not  fyona  fide  are  so  ex- 
plained as  not  to  warrant  that  conclusion. 

It  is  proved  by  a  witness  examined  by  the  complainant, 
that  Eve  Frone  sold  an  interest  in  some  land  which  she 

VOL.  ii.  2 


302  CASES  IN  CHANCERY. 

Jones  v.  Naughright. 

held  in  the  state  of  New  York  for  $1800  ;  that  the  wit- 
ness, as  her  attorney,  collected  for  her  of  this  money  be- 
tween -  eight  and  nine  hundred  dollars ;  that  John  Frone 
was  largely  in  debt,  and  that  the  witness,  at  the  request 
of  Eve  Frone,  paid  out  all  this  money  to  liquidate  these 
debts,  except  about  one  hundred  dollars ;  that  the  judg- 
ment was  confessed  to  secure  this  money,  and  that  the 
witness  made  up  the  account  for  the  attorney,  to  enable  him 
to  prepare  the  necessary  papers  for  the  judgment. 

It  was  argued,  by  the  complainant's  counsel,  that  the 
money  thus  paid  out  by  her  attorney  was  intended  by 
Eve  Frone  as  a  gift  to  her  son,  and  was  made  to  assume 
the  character  of  a  debt,  contrary  to  the  original  intention 
of  the  parties,  merely  to  defraud  the  complainant.  But 
there  is  no  evidence  to  warrant  this  conclusion.  The  mo- 
ney had  been  advanced  but  a  short  time  previous,  and  the 
pecuniary  circumstances  of  Eve  Frone  were  not  such  as 
to  justify  such  generosity.  The  complainant,  by  virtue  of 
the  judgment  and  execution  he  subsequently  recovered 
against  John  Frone,  sold  the  personal  property,  which 
Eve  Frone  purchased  under  her  judgment  and  execution. 
She  realized  nothing  from  the  real  estate,  in  consequence 
of  the  encumbrances  upon  it,  and  she  died  in  the  poor- 
house  of  the  county. 

As  to  the  judgment  not  being  confessed  at  her  request, 
it  is  proved,  by  the  attorney,  that  she  was  present,  and 
advised  with  him  in  reference  to  it,  and  that,  at  her  re- 
quest, he  bid  for  the  real  estate,  and  had  it  struck  off  in 
her  name.  It  is  true  John  Frone  remained  in  possession 
after  the  sale ;  but  this  is  sufficiently  explained  by  the 
fact  that  his  mother  was  living  with  him.  It  was  perfectly 
consistent  with  the  ~bonu  fides  of  the  transaction,  the  mother 
and  son  living  together,  that  the  son  should  continue  in 
the  control  and  management  of  the  property.  The  subse- 
quent sale  of  the  property  for  $100,  after  purchasing  it  for 
$300,  is  explained  from  the  circumstances  of  there  being 
heavy  encumbrances  upon  the  property,  the  interest  of 


FEBRUARY  TERM,   1855.  303 

Jones  v.  Naughright. 

which  Mrs.  Frone  was  unable  to  keep  down.  A  foreclo- 
sure was  inevitable,  and  she  therefore  made  the  best  bar- 
gain in  her  power  with  the  mortgagee. 

It  is  true,  as  was  insisted,  that  the  money  for  which  the 
judgment  was  confessed  might  have  been  honestly  due, 
and  yet  the  judgment  not  bonafide  •  and  that  if  it  was  con- 
fessed not  for  the  purpose  of  securing  the  debt,  but  as  a 
fradulent  cover  to  the  property,  and  to  protect  it  from 
another  creditor,  it  should  be  set  aside  as  fraudulent.  But 
to  establish  the  fraud  in  such  a  case,  the  proof  of  it  should 
be  clear  and  satisfactory.  The  fraud  must  be  proved.  It 
would  require  very  strong  and  convincing  circumstances, 
unexplained,  to  justify  the  court  to  infer  a  judgment 
fraudulent,  where  it  was  proved,  beyond  a  doubt,  that  the 
debt  was  justly  and  honestly  due.  Such  was  not  only  the 
fact  with  this  debt,  but  it  was  a  meritorious  debt,  and 
John  Frone  would  have  been  perfectly  justifiable  in  secur- 
ing it,  even  without  the  solicitation  of  his  mother.  The 
case  made  out  by  the  evidence  is  nothing  more  than  the 
ordinary  one  of  a  debtor  preferring  one  creditor  to  another. 

There  was  considerable  evidence  offered  to  show  that 
the  consideration  paid  by  John  Naughright  to  Eve  Frone 
for  the  real  estate  was  inadequate.  This  evidence  was 
proper,  as  bearing  upon  the  allegation,  that  the  judgment 
was  used  as  a  means  only  to  protect  the  property,  and 
get  it  beyond  the  reach  of  the  complainant's  judgment. 
But  the  testimony  is  very  conflicting  as  to  the  value  of 
the  property,  some  witnesses  testifying  that  the  property 
was  worth  less,  and  others  more,  than  the  defendant  gave 
for  it.  The  difference,  as  to  the  value  set  upon  the  pro- 
perty, shows  that  no  inference  of  fraud  ought  to  be  drawn 
from  inadequacy  of  the  consideration. 


304:  CASES  IN  CHANCERY. 


Ward  v.  Peloubet. 


JOHN  WARD  and  others  vs.  ALEXANDER  O.  PELOUBET  and 

others. 

CONSTRUCTION   OF  WILL. 

"  I  give  and  bequeath  unto  nay  beloved  wife,  Susan  Ward,  all  my  property, 
1  both  real  and  parsonal,  to  be  disposed  of  in  such  manner  as  she  may  think 
'  proper  for  the  benefit  of  the  family ;  it  is  my  wish  that  my  youngest  daugh- 
'  ters,  Mary  and  Caroline,  shall  have  an  education  equal  to  my  daughter 
'  Phebe,  and  my  two  sons,  Sydenham  and  John,  to  be  educated  and  fully 
'prepared  to  enter  college,  or  the  study  of  a  profession;  but  provied  either 
'  of  them  should  not  choose  to  have  such  an  education,  the  one  who  does 
'  not  to  be  made  equal  in  property  to  the  expense  of  educating  the  other, 
'  in  which  case  the  mother  is  to  be  judge,  or  in  case  of  her  decease  my  ex- 
'  ecutors,  whom  I  shall  appoint.  After  the  children  arrive  at  age,  I  leave  it 
'  discretionary  with  Susan,  my  loving  wife,  what  donation  to  make  them 
'  out  of  the  property,  and  in  case  of  her  decease  or  marriage  to  be  left  with 
'  the  executors,  whom  I  shall  hereafter  name,  but  in  every  respect  I  wish 
'  them  made  as  near  equal  as  can  be." 
Testator  appointed  his  wife,  his  brother  and  brother  in  law  executors.  The 

wife  alone  proved  the  will,  the  others  renounced. 

Held,  that  Susan  Ward  took  the  property  in  trust  for  herself  and  children 
while  she  lived  and  remained  his  widow ;  that  the  property  was  to  be  used 
for  their  mutual  benefit,  "  in  sucha  manner  as  she  might  think  proper,"  ex- 
cept in  the  particular  specified  by  the  testator,  and  so  that  in  every  respect 
the  children  should  have  an  equal  share  of  his  property. 
That  Susan  Ward  had  no  right  to  dispose  of  the  property  in  question  by  will, 
that  it  belonged  to  the  children  by  the  will  of  their  father,  and  is  to  be  di- 
vided among  them  equally. 


W.  Pennington,  for  complainants. 
Amzi  Dodd,  for  defendants. 

THE  CHANCELLOR.  The  determination  of  this  case  de- 
pends upon  the  construction  of  the  will  of  Enos  Ward, 
deceased.  The  will  is  brief,  and  as  every  clause  of  it  has 
a  bearing  upon  the  question  involved,  I  give  it  at  length. 

"  First.  It  is  my  will  and  I  do  order  that  all  my  just 
debts  and  funeral  expenses  be  duly  paid  and  satisfied  as 
soon  as  conveniently  can  be  after  my  decease.  2d,  I  give 
and  bequeath  unto  my  beloved  wife  Susan  Ward  all  my 


FEBKUAKY  TEEM,  1855.  305 


Ward  v.  Peloubet. 


property  both  real  and  personal  to  be  disposed  of  in  such 
manner  as  she  may  think  proper  for  the  benefit  of  the 
family — it  is  my  wish  that  my  youngest  daughters  Mary 
and  Caroline  shall  have  an  education  equal  to  my  daughter 
Phebe,  and  my  two  sons  Sydenham  and  John  to  be 
educated,  and  fully  prepared  to  enter  college  or  the  study 
of  a  profession,  but  provided  either  of  them  should  not 
choose  to  have  such  an  education  the  one  who  does  not, 
to  be  made  equal  in  property  to  the  expense  of  educating 
the  other,  in  which  case  the  mother  is  to  be  judge,  or  in 
case  of  her  decease  my  executors  whom  I  shall  appoint. 
After  the  children  arrive  at  age  I  leave  it  discretionary 
with  Susan  my  loving  wife  what  donation  to  make  them 
out  of  the  property,  and  in  case  of  her  decease  or  mar- 
riage to  be  left  with  the  executors  whom  I  shall  hereafter 
name,  but  in  every  respect  I  wish  them  made  as  near 
equal  as  can  be.  Lastly,  I  hereby  appoint  my  loving  wife 
Susan  "Ward,  my  brother  Joseph  P.  Ward,  and  my  brother 
in  law  John  Sydenham  executors,  &c.,  and  guardians  to  my 
children  during  their  minority." 

The  testator  left  considerable  real  and  personal  estate, 
which  went  into  the  possession  of  Susan  Ward.  She 
alone  proved  the  will,  the  other  persons  named  as  execu- 
tors having  renounced.  The  testator  died  on  the  twenty- 
fourth  day  of  January,  eighteen  hundred  and  twenty- 
eight.  On  the  fourth  of  August,  eighteen  hundred  and 
fifty-two,  Susan  Ward  died.  She  left  a  will,  by  which  she 
disposes  of.  the  eastate  which  came  to  her  by  the  will  of 
her  husband  as  follows :  "  The  estate  of  my  husband 
Enos  Ward  which  he  left  me  in  charge,  and  all  my  pro- 
perty, both  personal  and  real,  except  that  herein  previ- 
ously disposed  of  to  be  divided  among  my  five  remaining 
children,  viz.  Phebe  Pelonbet,  wife  of  A.  O.  Pelonbet,  Sy- 
denham T.  Ward,  Mary  E.  Grummon,  wife  of  Robert  M. 
Grummon,  John  Ward  and  Rhoda  Ward,  excluding  my 
daughter  Hannah  Peloubet,  now  deceased,  and  the  heirs 
of  her  body." 

2  o* 


306  CASES  IN  CHANCEKY. 

Ward  v.  Peloubet. 

Thus  it  will  be  seen  that,  by  the  will  of  Susan  Ward, 
one  of  the  children  was  excluded  from  any  portion  of  the 
estate  of  Enos  Ward,  deceased,  remaining  in  the  hands 
of  Susan  "Ward.  The  question  is,  what  estate  did  Susan 
Ward  take  under  the  will  of  her  husband,  and  what  in- 
terest, if  any,  had  the  children  in  that  estate  ? 

On  behalf  of  the  complainant,  it  is  contended,  that 
Susan  Ward  took  an  absolute  estate,  and  had  a  right  to 
dispose  of  the  property  without  any  regard  to  the  wishes  of 
her  husband,  as  expressed  in  his  will. 

In  the  case  of  Raikes  v.  Ward  (1  Hare  445),  the  lan- 
guage of  the  will  was :  "  I  gave  to  my  dear  wife  Marianne 
all  my  moneys,  security  for  money,  goods,  chattels,  and 
personal  estate  whatsoever,  to  the  intent  that  she  may 
dispose  of  the  same  for  the  benefit  of  herself  and  our 
children,  in  such  manner  as  she  may  deem  most  advan- 
tageous." The  Vice  Chancellor  decided  that  the  wife  did 
not  take  an  absolute  estate.  He  reviews  a  krge  number 
of  authorities  bearing  upon  the  question.  The  cases  may 
also  be  found  cited  in  1  Jannan  332.  I  have  no  difficulty 
in  determining  the  estate  which  Susan  Ward  took  under 
the  will  of  her  husband,  and  the  authorities  are  such  as 
to  cause  no  embarrassment  in  giving  a  construction  to  the 
the  will. 

The  testator  gives  his  estate,  real  and  personal,  to  his 
wife.  But  he  does  not  stop  here.  He  expresses  the  pur- 
pose for  which  he  gives  it  to  her,  "  to  dispose  of  in  such 
manner  as  she  may  think  proper  for  the  benefit  Xff  the 
family."  The  language,  "in  such  manner,"  if  not  ex- 
plained, might  give  her  an  unlimited  control  over  the 
property.  But  the  testator  immediately  proceeds  to 
qualify  this  language,  and  to  limit  its  natural  import  In 
doing  so,  he  makes  use  of  the  expression  "  it  is  my  wish." 
Taken  in  connection  with  what  follows,  this  language  is 
to  be  construed  the  same  as  if  he  had  said,  it  is  my  will. 
He  directs  how  the  property  shall  be  expended  in  the 
education  of  his  children,  and  his  intention  is  manifest 


FEBRUARY  TERM,  1855.  307 


Ward  t>.  Peloubet 


that  they  should  be  equally  benefitted  in  his  property. 
For,  after  directing  how  two  of  his  sons  should  be  edu- 
cated, he  declares,  "  that  in  case  either  of  them  should 
not  choose  to  have  such  education,  the  one  who  does  not, 
to  be  made  equal  in  property  to  the  expense  of  educating 
the  other,  the  mother  to  be  the  judge,  or  in  case  of  her 
decease,  my  executors."  When  the  testator,  therefore, 
uses  the  language  "to  dispose  of  in  such  manner,"  he 
means  to  leave  the  disposal  of  the  property  discretionary 
with  the  wife,  except  in  particulars  in  which  he  has  made 
a  disposition  of  it. 

Again.  The  testator  t  disposes  of  the  property  at  the 
death  or  marriage  of  his  wife  :  "  After  the  children  arrive 
at  age  I  leave  it  discretionary  with  Susan  my  wife  what 
donations  to  make  them  out  of  my  property."  This, 
standing  alone,  would  look  like  a  discretion  to  the  wife 
to  make  such  donations  to  the  children  as  she  pleased, 
and  dispose  of  the  residue  at  her  pleasure.  But  then  fol- 
low immediately  a  clause  giving,  in  case  of  the  death  or 
marriage  of  the  wife,  this  same  discretion  to  the  execu- 
tors. Then  the  testator  concludes  his  wish,  or  will,  re- 
specting the  property  in  the  emphatic  language,  "  but  in 
every  respect  I  wish  them  (my  children)  made  as  near 
equal  as  can  be." 

It  appears  to  me  plain  that  it  was  the  intention  of  the 
testator  to  give  the  property  to  his  wife,  in  trust  for  her- 
self and  children  while  she  lived  and  remained  his  wi- 
dow ;  that  the  property  was  to  be  used  for  their  mutual 
benefit,  "  in  such  manner  as  she  might  think  proper," 
except  in  the  particulars  specified  by  the  testator,  and  so 
that  in  every  respect  the  children  should  have  an  equal 
share  of  his  property. 

I  am  of  opinion,  therefore,  that  Susan  Ward  had  no 
right  to  dispose  of  the  property  in  question  by  will  ;  that 
it  belongs  to  the  children,  by  the  will  of  their  father,  and 
is  to  be  divided  among  them  equally. 

CITED  in  Van  Duyne  v.  Van  Duynf,  1  McCar.  400. 


308  CASES  IN  CHANCERY. 


"Wallace  v.  Brown. 


ELIZA  B.  WALLACE  vs.  JOHN  W.  BBOWN,  surviving  execu- 
tor, and  others. 

A.  employs  B.,  as  his  agent,  to  purchase  a  house  for  him.  B.  makes  the  pur- 
chase, takes  the  deed  in  his  own  name,  and  pays  his  own  money  for  it.  A. 
cannot  compel  B.  to  convey. 

It  is  within  the  statute  of  frauds,  which  requires  the  contract  to  be  in  writing. 

In  order  to  take  the  case  out  qf  the  statute,  on  the  ground  of  part  performance, 
two  things  are  requisite,  the  terms  of  the  contract  must  be  established  by 
proofs  to  be  clear,  definite,  and  unequivocal,  and  the  acts  relied  on  as  part 
performance  must  be  exclusively  referable  to  the  contract. 

The  disposition  of  courts  at  the  present  day  is  to  limit,  rather  then  extend 
exceptions  to  the  statute. 


B.  Gummere  and  M.  Heasley,  for  complainant. 
Jno.  C.  Ten  Eyck,  for  defendant. 

THE  CHANCELLOR.  Abraham  Brown  purchased  the  pro- 
perty in  question  of  Thomas  McClintock  for  $3500.  He 
took  the  deed  in  his  own  name,  and  paid  his  own  money 
for  it.  The  complainant  alleges  that  he  purchased  the 
property  for  her.  She  proves,  that  at  the  time  he  negotiated 
the  purchase,  he  told  Mr.  McClintock  he  was  purchasing 
for  the  complainant,  and  that  after  he  received  the  deed, 
he  said  the  property  belonged  to  the  complainant.  If 
from  these  facts  it  is  a  fair  inference  that  Abraham  Brown 
made  a  parol  agreement  with  the  complainant  to  purchase 
the  property  for  her,  yet  a  bill  for  specific  performance 
could  not  be  maintained  upon  such  an  agreement.  It  is 
within  the  statute  of  frauds,  which  requires  the  contract 
to  be  in  writing.  A.  employs  B.,  as  his  agent,  to  purchase 
a  house  for  him ;  B.  makes  the  purchase,  takes  the  deed 
in  his  own  name,  and  pays  his  own  money  for  it.  A.  can 
not  compel  B.  to  convey.  2  /Story,  §  1200,  note  1. 

But  the  complainant  replies  upon  part  performance.  She 
alleges  that  Abraham  Brown  put  her  in  possession  under 


FEBRUARY   TERM,  1855.  309 


Wallace  v.  Brown. 


the  agreement ;  that  she  put  large  repairs  on  the  property, 
and  that  she  subsequently  paid  upon  the  agreement,  in 
different  payments,  a  large  part  of  the  purchase  money. 
The  answer  admits  that  the  complainant  entered  into  the 
possession  of  the  property  immediately  after  its  purchase, 
and  has  continued  in  possession  ever  since.  It  admits  the 
amount  of  the  payments  alleged  in  the  answer,  but  denies 
the  parol  agreement,  and  sets  out  the  writing,  dated  in 
1840,  signed  by  Abraham  Brown,  and  which  the  answer 
alleges  was  found  among  the  testator's  private  papers, 
and  insists  is  the  agreement  upon  which  the  payments 
were  made.  The  defendants  tender  themselves  ready  to 
perform  this  agreement.  Between  the  alleged  parol  agree- 
ment and  this  writing  there  is  a  difference  of  $500,  as  to 
the  amount  of  the  purchase  money  to  be  paid  by  the  com- 
plainant. This  difference  has  given  rise  to  this  suit. 

As  the  matter  stands,  the  only  question  is,  whether  the 
defendants  shall  be  decreed  to  convey  upon  the  terms  Mr. 
Brown  purchased  of  McClintock,  or  upon  those  specified  in 
the  writing  found  among  Mr.  Brown's  papers  ? 

In  order  to  take  the  case  out  of  the  statute,  on  tne 
ground  of  part  performance,  two  things  are  requisite.  The 
terms  of  the  contract  must  be  established  by  proofs  to  be 
clear,  definite,  and  unequivocal,  and  the  acts  relied  on  as 
part  performance  must  be  exclusively  referable  to  the  con- 
tract. Whenever  those  principles  are  departed  from,  the 
statute  is  violated,  and  one  of  its  main  objects,  the  pre- 
vention of  setting  up  pretended  agreements,  and  then 
supporting  them  by  perjury,  is  defeated.  To  establish  the 
parol  agreement  in  this  case,  the  complainant  relies,  in 
part,  upon  Mr.  Brown's  declaration  to  a  third  'person,  that 
he  was  purchasing  for  the  complainant,  and  upon  the  im- 
mediate possession  and  part  payment  of  the  purchase 
money,  as  the  evidence  of  the  part  performance  of  the 
agreement.  Now,  from  this  mere  declaration  of  Mr. 
Brown,  the  court  is  asked,  not  only  to  presume  the 
existence  of  a  contract  between  the  parties,  but  to  conjee- 


310  CASES  IN  CHANCERY. 

Wallace  v.  Brown. 

ture  the  terms  of  that  contract,  to  wit,  that  Mr.  Brown 
was  to  convey  to  the  complainant  upon  the  same  terms  as 
he  purchased  of  McClintock.  And  as  to  the  possession, 
as  there  is  no  evidence  whatever  upon  what  contract  or 
terms  the  complainant  took  the  possession,  the  court  is  to 
presume,  also,  that  the  possession  is  referable  exclusively 
to  the  contract.  There  are  cases  to  be  found  when  courts 
have  undertaken  to  frame  contracts  for  the  parties,  ex 
ceguo  et  J)ono^  where  none  existed.  These  cases  have  been 
overruled,  however,  by  many  recent  authorities  ;  and  there 
is  a  disposition  in  courts  at  the  present  day,  in  which  I 
strongly  participate,  to  limit,  rather  than  extend  exceptions 
to  the  statute.  The  reason  given  why  mere  possession, 
where  the  terms  of  contract  are  clearly  proved,  and  the 
possession  shown  exclusively  to  refer  to  the  contract,  has 
been  adjudged  sufficient  to  take  the  case  out  of  the  stat- 
ute, appears  to  me  very  unsatisfactory.  To  determine 
any  act  a  part  performance,  it  is  essential  that  the  act 
should  be  one  prejudicial  to  the  party  seeking  the  bene- 
fit of  it ;  for  the  principle  upon  which  courts  execute  the 
contract  is  to  pi  event  the  commission  of  a  fraud  with 
impunity.  The  act  of  possession  is  said  to  be  prejudicial 
in  this  way.  The  party  in  possession  may  be  sued  as  a 
trespasser  and  for  the  profits  of  the  land,  and  if  he  could 
not  give  the  parol  agreement  in  evidence  he  would  be 
without  protection.  But  it  appears  to  me  the  propriety 
of  permitting  a  party  to  defend  himself  by  making  the 
parol  agreement  admissable,  may  well  be  admitted  with- 
out admitting  the  necessity,  in  order  to  prevent  fraud,  of 
permitting  a  party,  as  an  actor  in  court,  to  enforce  the 
specific  performance  of  such  an  agreement.  This  matter, 
however,  is  settled  by  many  well  adjudged  authorities. 
None  have  gone  so  far  as  I  should  be  obliged  to  go  in  this 
case,  should  I  declare  the  declaration  of  the  party  already 
referred  to,  and  the  mere  possession,  as  it  existed,  suffi- 
cient to  establish  the  terms  of  the  agreement,  and  its  part 
performance,  so  as  to  justify  a  decree  for  the  complainant. 


FEBKUAKY  TERM,  1855.  311 


Wallace  v.  Brown. 


But  in  addition  to  the  possession,  the  complainant  proves 
repairs  to  an  amount  of  upwards  of  six  hundred  dollars, 
and  payment  of  mpre  than  three  thousand  dollars  in  mo- 
ney. 

There  is  sufficient  evidence  to  show  that  the  repairs 
were  made  by  the  complainant,  not  as  tenant,  but  as  claim- 
ing to  be  the  owner  of  the  house,  and  that  the  payments 
were  made  on  account  of  the  purchase  money.  The  com- 
plainant insists  they  were  made  upon  a  parol  agreement 
between  the  parties,  the  terms  of  which  were  the  same  as 
the  terms  of  purchase  between  Brown  and  McClintock. 
The  defendants  do  not  deny  the  object  or  character  of  the 
repairs  and  payment,  but  do  deny  that  they  were  made 
upon  the  contract,  as  alleged  in  the  bill,  and  insist  that 
they  were  made  in  pursuance  of  the  writing  set  out  in 
their  answer. 

If  this  was  an  ordinary  agency  merely  of  Mr.  Brown, 
acting  in  the  purchase  on  behalf  of  the  complainant, 
why  did  he  take  the  deed  in  his  own  name,  and  why  was 
it  that  no  payment  was  made  until  four  years,  and  then 
again  until  more  than  eleven  years  after  Mr.  Brown  ad- 
vanced his  money  ?  These  circumstances  are  explained 
by  showing  that  Mr.  Brown  was  a  friend  of  the  complain- 
ant always  ready  to  aid  her  and  relieve  her  when  in  trouble, 
and  that  the  complainant  had  not  the  means  to  pay  the 
purchase  money.  But  these  explanations  -destroy  every 
presumtion,  which  the  complainant  might  otherwise  be 
entitled  to,  that  Mr.  Brown  acted  in  the  purchase  as  the 
mere  agent  of  the  complainant,  and  that  on  that  account 
she,  as  the  principal,  is  entitled  to  the  benefit  of  the  terms 
of  purchase  made  by  the  agent. 

The  whole  evidence  conclusively  shows  that  Mr.  Brown 
did  not  purchase  as  the  mere  agent  of  the  complainant. 
If  he  did  not,  then  the  complainant  totally  fails  to  prove 
any  parol  agreement,  the  terms  of  which  can  in  any  way 
be  ascertained  ;  and  if  no  agreemcjit,  the  terms  of  which 
can  be  ascertained,  is  proved,  the  court  cannot  make  one 


312  CASES  IN  CHANCEKY. 

Wallace  v.  Brown, 

for  the  parties-  The  declaration  of  Mr.  Brown,  which  is 
the  only  evidence  the  complainant  adduces,  was  to  the 
effect,  that  he  was  acting  as  the  complainant's  agent.  This 
being  disproved  by  all  the  subsequent  dealings  of  the 
parties,  there  is  not  a  particle  of  evidence  to  show  any 
parol  agreement,  and  no  guide  to  ascertain  the  terms  of 
such  an  agreement. 

If,  then,  the  complainant  is  entitled  to  a  specific  per- 
formance, it  is  upon  the  agreement  admitted  in  the  an- 
swer. The  complainant  objects  to  the  admission  as  evi-* 
dence  of  the  paper  produced  and  signed  by  Mr.  Brown. 
It  is  alleged  to  be  a  paper  made  by  the  adversary,  and  the 
existence  of  which  was  not  proved  to  be  known  to  the 
complainant.  If  the  parol  agreement  had  been  distinctly 
proved,  and  its  part  performance,  so  that  the  court  could 
have  felt  justified  in  making  a  decree  upon  it,  then  the 
admissibility  of  this  writing  would  have  been  important. 
The  question  would  then  have  been,  which  agreement  of 
the  two  should  be  performed  ?  But  since,  according  to 
the  view  taken  the  complainant  is  not  entitled  to  a  spe- 
cific performance  of  the  alleged  parol  agreement,  and 
can  only  have  a  decree  upon  the  agreement  as  it  is  ad- 
mitted in  the  answer,  the  question  raised  as  to  the  admis- 
sibility of  the  evidence  is  unimportant,  as  far  as  the  com- 
plainant is  concerned.  I  deem  it  proper  to  say  that  I 
think  there  is  evidence  enough  of  a  circumstantial  charac- 
ter to  justify  the  conclusion,  that  the  terms  of  the  writing 
produced  as  the  evidence  of  the  terms  upon  which  the 
complainant  was  entitled  to  have  the  property,  were  re- 
cognized by  the  complainant,  and  that  Mr.  Brown  accept- 
ed the  payments  upon  those  terms,  and  no  other.  The 
complainant  may  have  a  decree  for  specific  performance, 
if  she  is  willing  to  comply  with  its  terms,  as  set  out  in  the 
answer.  An  amendment  of  the  bill  is  not  necessary. 
Dan.  Ch.  P.  513,  514  Story  E.  P.  §  394. 

There    was  a  misunderstanding    between    the    parties. 
They  both  acted  in  good  faith,  and  no  blame   can  properly 


FEBRUARY  TEEM,  1855.  313 


Garret  v.  Stilwell's  executors. 


be  attached  to  either.  The  only  question  of  doubt  with 
me  is  as  to  the  costs.  If  when  the  defendants  were  called 
upon  for  the  deed,  and  the  tender  made  them,  they  had 
placed  their  refusal  upon  the  ground  that  they  were  only 
bound  to  perform  upon  the  terms  of  the  writing,  and  had 
tendered  themselves  ready  to  perform  upon  tfiose  terms, 
I  should  be  unwilling  to  make  a  decree  in  favor  of  the 
complainant,  except  upon  her  payment  of  all  the  costs  of 
this  suit.  But  from  all  the  light  I  can  derive  from  the 
evidence,  it  appears  that  the  defendants  refused  absolutely 
to  convey,  alleging  merely  that  there  was  more  money 
due.  There  is  no  evidence  that  they  stated  the  amount 
they  demanded,  or  expressed  any  willingness  to  convey 
upon  any  terms.  By  their  answer,  they  tender  themselves 
ready,  but  do  not  aver  that  they  were  ready  until  the  com- 
plainant was  obliged  to  institute  this  suit.  The  decree  will 
be  made  without  costs. 

CITED  in  Ryno  v.  Darby,  5  C.  E.  Gr.  234. 


GARRET  and  others  vs.  JOSEPH  R.   STILWELL'S  EXECUTORS 
and  others. 

Joseph  M.  Stilwell  and  Joseph  R.  Stilwell  were  the  administrators  of  Benja- 
min Stilwell.  They  were  both  deceased.  The  bill  called  upon  the  execu- 
tors of  Joseph  M.  Stilwell  for  a  resettlement,  and  to  account  for  the  estate 
of  Benjamin  Stilwell,  and  to  pay  complainants  their  distributive  share. 
Held,  that  if  they  were  entitled  to  a  distributive  share,  they  could  not  call 
upon  the  executors  of  a  surviving  administrator  for  any  such  account;  that 
the  executors  did  not  represent  the  estate  of  Benjamin  Stilwell. 

Benjamin  Stilwell,  at  his  death,  left  his  brother,  Joseph  R.  Stilwt'Il,  and  two 
sisters  surviving  him.  The  complainants  were  the  heirs  at  law  and  next 
of  kin  of  Joseph  R.  Stilwell.  Held,  that  as  they  stood  in  the  place  of 
Joseph  R.  Stilwell,  they  had  no  right  to  complain  of  his  fraudulently  using 
what  they  claimed  through  him. 


W.  iralstcd,  for  complainants. 

Cannon  and  W.  L.  Dayton,  for  defendants. 
VOL.  n.  2  D 


314  CASES  IN  CHANCERY. 

Garret  v.  Stilwell's  executors. 

THE  CHANCELLOR.  The  complainants  cannot  maintain 
this  bill.  They  seek  relief,  alleging  themselves  to  be  the 
heirs  at  law  and  next  of  kin  of  Benjamin  Stilwell,  de- 
ceased, and,  as  such,  claim  the  one-third  part  of  the  dis- 
tributive share  of  his  personal  estate  and  the  one  equal 
third  part  of  his  real  estate.  Joseph  H.  Stilwell  and  Jo- 
seph R.  iStilwell  were  the  administrators  of  Benjamin 
Stilwell.  The  bill  alleges  that  the  administrators  fraud- 
ulently administered  the  estate ;  that  they  exhausted  the 
personal  estate  in  the  payment  of  false  claims,  and  then 
fraudulently  procured  an  order  of  the  Orphans  Court  of 
the  county  of  Burlington  to  sell  the  real  estate,  and  used 
the  proceeds  of  the  sale  in  fraudulently  paying  other  ille- 
gal claims.  Joseph  M.  Stilwell  and  Joseph  R.  Stilwell 
are  both  deceased.  The  representatives  of  Joseph  R.  Stil- 
well are  not  before  the  court,  but  the  bill  calls  upon  the 
executors  of  Joseph  M.  Stilwell,  one  of  the  administrators 
of  Benjamin  Stilwell's  estate,  for  a  resettlement,  and  to 
account  for  the  estate  of  Benjamin  Stilwell,  and  to  pay 
the  complainants  their  distributive  share  of  that  estate. 
It  is  manifest,  if  the  complainants  are  entitled  to  such 
distributive  share,  they  cannot  call  upon  the  executors  of 
a  surviving  administrator  for  any  such  account,  and  for 
the  very  plain  reason,  that  the  executors  do  not  represent 
the  estate  of  Benjamin  Stilwell.  The  defendants  have  no 
more  to  do  with  those  accounts  than  the  complainants 
themselves  have. 

But  the  complainants  have  no  more  right  here,  in  the 
capacity  of  next  of  kin  and  heirs  at  law  of  Benjamin  Stil- 
well, than  the  defendants  have  as  personal  representatives 
of  his  estate.  The  complainants  show,  by  their  bill,  that 
they  cannot  claim  in  that  capacity.  Benjamin  Stilwell,  at 
his  death,  left  his  brother  Joseph  R.  Stilwell  and  two 
sisters  surviving  him.  The  complainants  are  the  heirs  at 
law  and  next  of  kin  of  Joseph  R.  Stilwell,  and  if  there  is 
any  estate  of  Benjamin  Stilwell  which  Joseph  R.  was  en- 
titled to,  the  complainants  must  claim  through  him,  and 


FEBRUARY  TERM,  1855.  315 


Hunt  17.  Hunt. 


as  his  heirs  and  next  of  kin.  They  now  allege,  by  their 
bill,  that  Joseph  R.,  through  whom  they  claim,  and  his 
co-administrator  squandered  their  intestate's  estate.  One- 
third  of  it  belonged  to  Joseph  R.  S  til  well,  through  whom 
they  claim.  How  can  the  complainants  complain  of  his 
fraudulently  using  what  they  claim  through  him  ?  The 
complainants  stand  in  the  place  of  Joseph  R.  Stilwell, 
and  their  right  to  maintain  this  suit  is  no  better  than 
Joseph  R.  Stilwell's  would  have  been  had  he  been  here  as 
complainant.  The  foundation  of  their  bill  is,  that  the 
property  they  claim  belonged  to  Joseph  R.  Stilwell.  He 
had  a  right  to  do  what  he  pleased  with  his  own.  It  is  just 
like  a  son  calling  the  executors  of  his  father  to  account 
for  the  property  which  his  father  had  squandered,  on  the 
ground,  that  if  the  property  had  not  been  squandered,  it 
would  have  come  to  him  as  the  next  of  kin.  What  an 
extraordinary  exhibition  would  have  been  made  if  Joseph 
R.  Stilwell  had  filed  a  bill  against  the  executors  of  his 
co-administrator,  calling  upon  them  to  respond  for  a  fraud 
which  he,  Joseph  R.  Stilwell,  had  committed  in  conjunc- 
tion with  his  co-administrator?  And  yet  these  proceed- 
ings exhibit  just  such  a  case. 

There  are  many  other  objections  fatal  to  the  complain- 
ants, but  it  is  really  treating  the  case  too  seriously  to  no- 
tice them.  The  bill  must  be  dismissed  with  costs. 


WILLIAM  E.  HUNT  vs.  M.  F.  HUNT  et  al. 


A  testator  gives  and  bequeaths  all  his  property  in  trust  for  the  payment  of 
certain  annuities  and  legacies,  and  then  says,  "  And  to  ray  two  aforesaid 
daughters  I  give  and  bequeath  the  residue  of  all  my  estates,  real  and  per- 
sonal. 

Held,  that  the  legal  title  to  the  residue  passed  by  the  will  to  the  daughters. 
That  the  annuities  and  legacies  were  a  charge  upon  the  estate,  but  when 
they  were  satisfied  the  estate  was  discharged  of  all  trusts. 


316  CASES  IN  CHANCERY. 

Hunt  v.  Hunt. 

W.  L.  Dayton,  for  complainant. 
E.  H.  Grandin,  for  defendants. 

THE  CHANCELLOR.  The  testator,  by  his  will,  disposes 
of  his  estate  as  follows :  I  give  and  bequeath  to  Col. 
Thomas  Cadwalader  and  Philemon  Dickinson,  both  resi- 
dents of  Trenton  and  its  vicinity,  and  of  the  county  of 
Mercer,  all  my  property,  real  and  personal,  in  trust  for  the 
following  purposes  :  First  to  pay  all  my  debts  as  soon  as 
convenient ;  second,  to  allow  my  housekeeper,  Ann  Drake, 
twenty-four  dollars  yearly,  during  her  natural  life,  payable 
half-yearly,  and  one  quarter's  wages  in  advance  immedi- 
ately after  my  decease — also  my  other  hired  dornetics  ten 
dollars  who  shall  be  with  me  at  the  aforesaid  time.  To 
my  son  Israel  Clarke  three  hundred  dollars  yearly  paid  in 
quarterly  instalments — and  to  my  son  Nicholas  Bellville 
Clarke  the  same  provided  he  the  said  Nicholas  makes  no 
demand  of  my  estate,  and  prefers  no  claim,  legal  or  other- 
wise, for  monies  said  to  be  left  him  by  his  grandfather 
Nicholas  Bellville,  in  which  case  this  annuity  shall  cease, 
determine,  and  end,  and  shall  be  paid  to  my  daughters 
Susan  Elizabeth  Hunt  and  Annie  B.  Clarke.  And  to  my 
two  aforesaid  daughters  I  give  and  bequeath  the  residue 
of  all  my  estates  real  and  personal,  together  with  the  re- 
version of  the  two  annuities  left  to  my  two  sons  after 
their  decease.  To  my  grandson  James  Clarke  Hunt,  the 
reversion  of  Ann  Drake's  annuity  after  her  decease.  And 
I  hereby  constitute,  &c. 

The  debts  and  legacies  have  all  been  paid.  The  annui- 
tants are  all  dead,  except  Ann  Drake,  and  the  annuities 
due  them  were  all  paid  up  to  the  time  of  their  decease. 
William  E.  Hunt,  the  complainant,  married  Susan  Eliza- 
beth Hunt.  She  died  leaving  four  children  surviving  her. 
The  complainant  has  since  married  Annie  B.  Clarke,  the 
other  daughter  of  the  testator.  The  executors  and  trus- 
tees named  in  the  will  have  since  the  testator's  death  been 
in  the  receipt  of  the  rents  and  profits  of  the  real  estate  of 


FEBEUAEY  TEEM,  1855.  317 


Hunt  v.  Hunt. 


the  testator.  The  complainant,  by  this  bill,  calls  upon  the 
executors  to  account  for  the  rents  and  profits.  It  is  really 
an  amicable  suit  to  determine  the  true  construction  of  the 
will. 

The  counsel  who  drew  the  bill  seemed  to  be  under  the 
impression  that  the  legal  title  to  all  the  real  estate  of  tes- 
tator was  vested  in  the  executors,  and  that  after  the  pay- 
ment of  the  annuities,  the  executors  still  held  the  estate 
as  a  trust  estate  for  the  benefit  of  the  testator's  daugh- 
ters, Susan  Elizabeth  Hunt  and  Annie  B.  Clarke.  And 
under  this  idea,  the  complainant  only  asks,  by  his  bill,  that 
he  may  have  the  rents  and  profits  of  that  portion  of  the 
estate  which  was  given  to  his  former  wife  Susan  Elizabeth, 
claiming  these  rents  and  profits  as  tenant  by  the  curtesy  in 
the  trust  estate.  But  it  appears  to  me  very  clear  that  there 
was  no  trust  estate  created  by  this  will  for  the  benefit  of 
the  daughters,  and  that  whatever  they  take  under  the  will 
is  by  direct  gift  from  the  testator.  It  is  true  the  testator 
"  gives  and  bequeaths "  to  Col.  Thomas  Cadwalader  and 
Philemon  Dickinson  all  his  property,  real  and  personal, 
but  for  what  purposes  ?  He  specifies  those  purposes.  They 
are  the  payment  of  certain  annuties  and  legacies.  But 
after  these  arcj  named,  he  does  not  then  create  a  trust 
estate  for  the  benefit  of  his  daughters.  After  the  fulfil- 
ment of  the  trust,  there  remains  a  residue  to  be  disposed 
of.  The  testators  gives  it  direct  to  his  daughters  without 
any  intervention  of  trustees.  His  language  is,  "  and  to 
my  two  aforesaid  daughters  I  give  and  bequeath  the  re- 
sidue of  all  my  estates,  real  and  personal."  Over  this  re- 
sidue these  trustees  have  no  control.  The  estate  given  to 
the  daughters  does  not  partake  of  the  nature  of  a  tr,i.<t 
estate.  The  legal  title  parsed  by  this  will  to  the  daughter?. 
"  I  give  and  bequeath  the  residue  of  all  my  estates  "  to 
my  daughters.  What  residue  \  Undoubtedly  that  which 
remained  after  all  the  trusts  of  the  will  are  disposed  <>f. 
Suppose  the  will  was,  "  I  give  all  my  estate,  real  and  per- 
sonal, to  Col.  T.  C.  and  P.  P.  in  trust  to  pay  A.  D.  four 

2D* 


318  CASES  IN  CHANCERY. 

Hunt  c.  Hunt. 

hundred  dollars,  and  all  the  rest  and  residue  of  my  estate, 
real  and  personal,  I  give  and  bequeath  to  my  two  daugh- 
ters, S.  E.  H.  and  A.  B.  C."  In  such  case,  it  certainly 
would  be  very  clear  that  legal  title  would  pass  to  the 
daughters,  subject  to  the  payment  of  the  $500.  These 
annuities  and  legacies  are  nothing  but  a  charge  upon  the 
estate.  When  they  are  satisfied,  the  estate  is  discharged 
of  all  trusts,  and  the  legal  estate  passes,  by  virtue  of  the 
devise  and  the  express  language  of  the  will,  to  the  two 
daughters.  The  will  gives  nothing  to  the  trustees  for  the 
benefit  of  the  daughters.  What  it  gives  to  the  daughters 
it  gives  them  direct.  "  To  my  two  aforesaid  daughters,  I 
give  and  bequeath  the  residue,"  &c. 

The  rights  of  the  husband,  therefore,  in  this  estate  are 
the  rights  which  a  husband  has  in  an  estate  of  fee  simple  of 
his  wife. 

The  complainant  jure  mariti,  as  the  husband  of  Susan 
E.  Clarke,  is  entitled  to  all  the  residue  of  the  personal 
estate  of  the  testator  and  of  all  the  rents,  issues,  and  pro- 
fits of  the  real  estate  in  the  hands  of  the  executors  at  the 
time  of  her  death ;  and,  as  tenant  by  the  curtesy,  he  takes  a 
life  estate  in  the  residue  of  the  real  estate  which  belonged 
to  her  under  her  father's  will,  and,  as  such,  may  dispose  of 
it  during  his  life. 

As  the  husband  of  Annie  B.  Clarke,  the  complainant  ia 
entitled  to  all  the  residue  of  the  personal  estate  of  the 
testator,  and  of  all  the  rents,  issues,  and  profits  of  the 
real  estate  in  the  hands  of  the  executors,  except  such  as 
had  been  paid  to  her  previous  to  her  marriage.  The  com- 
plainant is  entitled  to  an  account  as  soon  as  the  trusts  of 
the  will  are  performed,  or  properly  secured  by  a  decree  of 
this  court.  All  the  legacies  have  been  paid,  and  all  the 
annuities  are  extinguished,  except  that  of  Ann  Drake. 
This  is  an  annuity  of  twenty-four  dollars  a  year,  the  re- 
vision of  which  now  belongs  to  James  C.  Hunt.  There 
are  more  than  funds  sufficient  in  the  hands  of  the  executors 
to  secure  this  annuity. 


FEBKUAKY  TEEM,  1855.  319 


Hunt  u.  Hunt. 


There  must  be  reference  to  a  master  to  take  an  account 
of  the  personal  estate  and  of  the  rents  of  the  real  estate 
of  the  testator  now  in  the  hands  of  the  executors,  making 
all  just  allowances,  and  to  state  what  sum  will  be  sufficient 
to  remain  in  the  hands  of  the  executors  as  a  principal  to 
secure  the  annuity  to  Ann  Drake. 


CASES 

ADJUDGED  IN 

THE  COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW  JERSEY, 

MAY  TEEM,  1855. 

JOHN  MILLER  vs.  MAKT  HKNDEESON  et  al. 

• 

M.  D.  W.,  A.  P.  W.,  C.  W.,  and  M.  W.  entered  into  an  agreement  with  G.  D. 
A.  to  convey  to  him  a  tract  of  land  for  $400.  G.  D.  A.  paid  down  $150  on 
the  agreement,  and  was  to  have  a  deed  on  the  payment  of  the  balance  of 
the  money.  G.  D.  A.  assigned  the  agreement  to  J.  C.,  as  security  for  the 
payment  of  a  note  of  $150.  J.  C.  died,  leaving  several  children  her  heirs 
at  law,  and  a  will,  with  one  J.  H.  executor.  The  heirs  at  law  of  J.  C.  as- 
signed the  agreement,  for  the  consideration  of  $200,  to  C.  "W.,  one  of  the 
original  parties  to  the  agreement.  C.  W.  then  assigned  the  agreement  to 
the  complainant.  M.  D.  W.,  A.  P.  W.,  and  C.  "W.,  three  of  the  parties  to 
the  original  agreement,  died,  leaving  M.  W.,  another  party  to  the  agree- 
ment, surviving.  The  bill  is  filed  against  M.  W.  and  W.  P.  S.,  the  executor 
of  C.  W.,  for  a  specific  performance. 

The  heirs  at  law  of  J.  C.  had  no  right  to  assign  the  agreement.  She  held  it 
merely  as  a  mortgage  security,  and  her  interest  in  it  passed,  at  her  death, 
to  her  executor,  and  not  to  her  heirs  at  law.  The  bill  does  not  show  that 
the  heirs  of  J.  C.  could  make  any  title  to  the  agreement. 

M.  W.  and  A.  P.  W.,  original  parties  to  the  agreement,  being  dead,  their 
heirs  at  law  should  be  parties  to  the  suit. 

G.  D.  A.,  the  party  of  the  second  part  to  the  original  agreement,  being  dead, 
his  personal  representative  should  be  a  party  to  the  suit.  G.  D.  A.,  having 
assigned  the  agreement  only  as  collateral  for  a  debt,  retained  an  interest 
in  the  agreement. 


MAY  TERM,   1855.  321 


Miller  v.  Henderson. 


Where  the  mortgagee  assigns  the  mortgage  absolutely  to  a  third  person,  ha 
is  not  a  necessary  party  to  a  foreclosure  suit.  But  if  the  assignment  is  not 
absolute,  then  he  is  a  necessary  party. 

The  bill  is  filed  to  compel  the  specific  performance  of 
an.  agreement.  The  defendants  filed  a  general  demurrer 
to  the  bill.  Sufiicient  of  the  case  appears  in  the  opinion 
of  the  Chancellor  to  understand  the  points  decided. 

3£.  Beasley,  in  support  of  the  demurrer. 
W.  Hoisted,  contra. 

THE  CHANCELLOR.  The  demurrer  is  well  taken  on  seve- 
ral points.  The  original  agreement  was  made  on  the  31st 
of  May,  1834,  and  purports  to  be  between  Mary  D.  "Wright, 
A.  P.  Wright,  Charles  Wright  and  Mary  Wright,  heirs 
at  law  of  Joshua  Wright,  deceased,  of  the  one  part,  and 
George  D.  Abrahams  of  the  other  part,  by  which  the  par- 
ties of  the  first  part  agree  to  convey  to  the  party  of  the 
other  part  a  lot  of  land  containing  five  acres,  for  the  con- 
sideration* of  eighty  dollars  an  acre.  On  the  making  of 
the  agreement,  Abrahams  paid  down  one  hundred  and 
fifty  dollars.  The  deed  was  to  be  made  when  the  residue 
of  the  purchase  money  was  paid.  On  the  13th  of 
September,  1836,  Abrahams  endorsed  on  this  agreement 
his  prommissory  note,  by  which  he  agreed  to  pay,  to  the  or- 
der of  Jemima  Chambers,  three  hundred  and  fifty  dollars, 
with  interest,  twelve  months  after  date  ;  and  he  then  as- 
signed to  her  all  his  interest  in  the  said  agreement,  to  se- 
cure the  payment  of  the  said  note,  the  said  assignment  to 
be  void  when  the  note  was  paid.  In  1838,  Jemima  Cham- 
bers died,  leaving  several  children,  and  one  of  them  an 
infant.  She  left  a  will  which  was  proved  by  Joseph  Ilow- 
ell,  the  executor  thereof. 

On  the  21st  of  May,  18-41,  the  children  of  Jemima 
Chambers,  then  of  age,  and  the  one  an  infant,  by  her 
guardian,  for  the  consideration  of  two  hundred  dollars, 


322  CASES  IN  CHANCEKY. 

Miller  v.  Henderson. 

assigned  the  said  agreement  to  Charles  Wright,  one  of 
the  original  parties  to  the  same. 

On  the  13th  of  March,  1852,  Charles  Wright,  for  the 
consideration  of  $200,  assigned  the  said  agreement  to  the 
complainant. 

Mary  D.  Wright,  Aaron  P.  Wright  and  Charles  Wright 
are  dead.  The  bill  does  not  state  who  are  their  heirs  at 
law.  The  bill  is  filed  against  Mary  Henderson,  formerly 
Mary  Wright,  the  only  surviving  party  to  the  original 
agreement.  She  afterwards  married  one  Henderson,  who 
is  deceased.  There  is  but  one  other  defendant,  William 
P.  Sherman,  the  executor  of  Charles  Wright.  There  is 
no  one  before  the  court  to  represent  Mary  D.  and  Aaron 
P.  Wright. 

According  to  the  case  made  by  the  bill,  the  complain- 
ant does  not  show  himsslf  entitled  to  maintain  this  suit. 
He  claims  title  through  the  heirs  at  law  of  Jemima  Cham- 
bers, who  assigned  the  agreement  to  Charles  Wright.  The 
bill  ought  to  show  what  right  these  heirs  had,to  assign  the 
agreement.  Jemima  Chambers  held  it  merely  as  a  mort- 
gage security.  At  her  death  it  belonged  to  her  personal 
representative,  and  not  to  her  heirs  at  law.  She  left  a 
will.  Her  interest  in  the  agreement  passed  to  Joseph 
Howell,  her  executor,  unless  specifically  disposed  of  by 
the  will.  Her  heirs  at  law  could  no  more  convey  a  good 
title  to  the  agreement  than  could  a  perfect  stranger  to  the 
transaction.  On  this  ground  the  demurrer  is  well  taken. 

The  bill  is  defective  for  want  of  parties.  Mary  and 
Aaron  P.  Wright  are  not  represented  before  the  court. 
At  their  death,  their  respective  interest  in  the  land  de- 
:  scended  to  their  heirs  at  law,  and  those  heirs  should  be 
'made  parties.  The  bill  does  not  state  who  they  are.  It 
may  be  that  the  defendant,  Mary  Henderson,  is  the  sole 
•heir  to  .  each  of  the  deceased  parties  to  the  agreement. 
This,  however,  is  mere  conjecture.  If  it  is  so,  the  bill  is 
.defective,  for  the  reason  it  does  not  show  this  fact. 

Abrahams    is    dead,  and    his    personal    representative 


MAY  TERM,  1855.  323 

"Wilson  v.  Gray. 

should  be  a  party  to  the  suit.  Abrahams  did  not  assign 
his  interest  in  the  agreement  absolutely  to  Jemima  Cham- 
bers. It  was  a  conditional  assignment,  and  he  retained 
an  interest  in  the  property  assigned.  Where  the  mortga- 
gee assigns  the  mortgage  absolutely  to  a  third  person,  it 
is  not  necessary  that  the  mortgagee  should  be  a  party  to 
the  suit  for  the  foreclosure  and  sale  of  the  mortgaged  pre- 
mises. But  if  the  assignment  is  not  absolute,  but  the 
mortgagee  retains  an  interest  in  the  mortgage  security, 
then  he  is  a  necessary  party,  because  he  is  interested  in 
the  suit,  and  particularly  in  taking  the  account  of  what  is 
due  on  the  security.  For  the  same  reason,  Abrahams'  per- 
sonal representative  should  be  before  the  court. 

CITED  in  Ackerson  v.  Lodi  Branch  R.  R.  Co.,  1  Stew.  543. 


DOUGIITEX  and  WILSON  vs.  GRAY,  assignee,  et  al. 

M.  K.  and  TV",  made  an  assignment  for  the  -benefit  of  creditors.  On  the  per- 
sonal property  assigned  there  was  a  mortgage,  the  bona  fides  of  which 
was  not  disputed.  The  assignee  having  sold  the  property,  and  converted 
it  into  money,  the  mortgagee,  or  person  claiming  under  him,  has  an  equit- 
able lien  on  the  proceeds  of  sale  for  the  payment  of  the  mortgage. 

The  interest  of  a  mortgagee  in  personal  property,  where  the  possession  re- 
mains with  the  mortgagor,  and  before  condition  broken,  cannot  be  taken' 
in  execution  as  the  property  of  the  mortgagee.  A  mortgagor's  interest  in 
personal  property  is  the  subject  of  execution  and  sale,  a  mortgagee's  inter- 
est is  not. 

In  New  Jersey,  the  same  doctrine  prevails  as  to  the  respective  rights  of  mort- 
gagor and  mortgagee  of  personal  projxnty,  and  as  to  the  character  of  their 
respective  interests,  as  governs  mortgages  of  real  property. 

A  judgment  and  execution  creditor  of  the  mortgagee  may  file  a  bill  of  dis- 
covery against  an  alleged  fraudulent  assignee  of  the  mortgagee,  and  if  the 
ossignment  is  fraudulent,  the  creditor  is  entitled  to  the  mortgage  fund. 
The  statute  avoids  all  difficulty  which  might  have  existed  to  a  creditor'* 
maintaining  his  bill  for  a  discovery  as  to  property  not  subject  to  execution. 

An  assignment  may  be  fraudulent  although  it  was  made  for  a  valuable  con- 
sideration. If  the  purchase  was  not  bona  fide,  but  was  made  to  defraud 
creditors,  the  assignment  is  not  valid,  although  an  adequate  consideration 
was  given. 

Under  the  circumstances,  the  court  drclared  the  assignment  good  only  so  far 
as  to  reimburse  the  assignee  for  the  actual  advan<t<s'iuud<>  by  him. 


324  CASES  IN"  CHAKCERY. 

Wilson  v.  Gray. 

The  bill  alleges,  that  on  or  about  the  3d  day  of  May, 
1853,  Benjamin  M.  McMurtrie,  Julius  King,  and  Peter 
Williamson  were  partners,  doing  business  in  Gloucester 
City,  in  this  state ;  that  they  became  indebted  to  the  com- 
plainant in  the  sum  of  $567. TO,  for  which  they  gave  their 
note  at  three  months  ;  that  on  the  5th  day  of  December, 
1853,  the  complainant  recovered  judgment  on  said  note 
against  the  drawers  thereof,  issued  execution  thereon,  and 
caused  a  levy  to  be  made  on  certain  personal  property, 
in  the  said  bill  afterwards  mentioned  as  mortgaged  to  the 
said  Peter  Williamson,  and  also  assigned  to  Philip  J.  Gray, 
as  assignee  ;  that  on  the  1st  of  August,  1853,  Williamson 
retired  from  the  firm,  having  sold  his  interest  to  the  other 
partners,  for  the  sum  of  about  $2000,  and  took  as  security 
a  mortgage  on  all  the  property  and  effects  belonging  to 
the  said  partnership  being  in  Gloucester  City,  their  then 
place  of  business,  which  mortgage  was  dated  the  15th 
of  August,  1853,  and  recorded  on  the  17th  day  of  August, 
1853.  The  bill  charges,  that  this  mortgage  vested  the  le- 
gal estate  of  the  property  so  mortgaged  in  the  mortgagee, 
Peter  Williamson  ;  that  Williamson  pretends,  that  on  the 
17th  day  of  December,  1853,  he  assigned  the  said  mort- 
gage to  James  Molyneux,  for  paying  a  debt  for  money  lent 
and  advanced  to  said  Molyneux  to  him  and  various  other 
debts  by  said  Williamson  then  owing  to  sundry  persons, 
in  consideration  of  the  release  of  said  debt  of  said  Moly- 
neux and  of  the  further  sum  of  $764.10  paid,  but  that 
the  complainants  had  no  notice  or  knowledge  of  said  assign- 
ment. 

The  bill  charges  the  assignment  of  the  mortgage  to  be 
fraudulent,  to  defeat  the  claim  of  the  complainant ;  that 
the  assignment,  if  made  at  all,  was  on  the  17th  of  Decem- 
ber, after  the  judgment  and  levy  of  the  complainant,  and 
is  therefore  subject  to  the  same  ;  that  the  property  mort- 
gaged was  the  machinery  with  which  the  firm  carried  on 
business,  and  that  after  Williamson  withdrew  from  the 
firm  McMurtrie  and  King  carried  on  the  same  business, 


MAY  TEEM,  1855.  325 

Doughten  v.  Gray. 

and  continued  in  the  use  of  the  same  machinery  and  pro- 
perty mentioned  in  the  mortgage  until  about  the  8th  of 
October,  1853,  when  they  became  embarrassed,  and  made 
a  general  assignment  of  all  their  partnership  to  Philip  J. 
Gray;  that  said  Gray,  as  such  assignee,  on  the  14th  of 
December,  1853,  after  the  complainants'  judgment  and 
levy,  and  previous  to  the  assignment  to  Molyneaux,  sold 
the  property  to  assigned,  and  realized  from  such  sale 
about  the  sum  of  $10,000,  which  he  now  holds  for  the 
benefit  of  the  creditors.  The  bill  charges,  that  the  assig- 
nee's sale  was  made  with  full  notice  of  the  said  mortgage, 
and  judgment,  and  levy,  and  insists  that  the  legal  estate 
'of  the  said  personal  property,  by  virtue  of  said  mortgage, 
was  vested  in  said  Williamson,  and  that  the  said  mort- 
gage is  a  lien  upon  the  funds  in  the  hands  of  the  said  as- 
signee, which  funds  now  represent  the  said  mortgaged 
property  ;  and  that  the  mortgage  is  entitled  to  priority  of 
payment  out  of  the  proceeds  of  sale,  and  that  by  reason 
of  his  judgment  and  execution  against  "Williamson,  as 
well  as  McMurtrie  and  King,  and  the  levy  upon  the  inte- 
rest of  the  said  Williamson  in  the  mortgage  property 
prior  to  the  assignment,  the  complainant  has  a  right  to 
have  his  judgment  and  execution  satisfied  out  of  that  part 
of  the  funds  in  the  hands  of  the  said  assignee  due  to  said 
Williamson  or  James  Molyneaux  on  the  said  mortgage. 
The  bill  further  insists,  that  if  the  complainants  are  mis- 
taken as  to  their  lien  on  the  mortgage  property,  by  virtue 
of  the  legal  rights  which  Williamson  had  therein,  then  they 
insist,  that  the  assignment  to  Molyneaux  being  fraudulent, 
they  have,  by  virtue  of  the  statute,  a  right  to  a  discovery 
from  Williamson,  and  to  receive  from  the  assignee,  out  of 
the  moneys  due  from  the  assignee  to  Williamson  on  his 
mortgage,  sufficient  to  satify  their  judgment  execution. 

Philip  J.  Gray,  the  assignee,  filed  his  answer  to  the  bill 
He  admits  all  the  allegations  of  the  bill,  except  that  he 
denies  having  any  knowledge  of  the  mortgage  at  the  time 
of  the  assignment  to  him  ;  and  he  also  denies  knowledge 

Vol.  n.  2E 


326  CASES  IN  CHANCEBY. 

Doughten  v.  Gray. 

of  any  fraud  in  the  assignment,  and  submits  his  rights  as 
assignee  to  the  decision  of  the  court. 

James  Molyneaux  also  filed  his  answer.  He  alleges 
that  the  bond  and  mortgage  were  assigned  to  him  on  the 
17th  day  of  December,  1853  ;  that  the  consideration  of 
the  assignment  was  the  sum  of  $175,  for  money  before 
that  time  lent  and  advanced  by  him  to  Williamson,  and 
also  the  sum  of  $764.10,  paid  by  him  to  Williamson  in 
cash ;  that  the  purchase  of  the  said  bond  and  mortgage 
was  bona  'fide ;  that  at  the  time  he  had  no  knowledge  of 
the  judgment  of  the  complainants,  or  any  suspicion  of  it : 
he  particularly  and  fully  denies  any  fraud,  or  that  the  as- 
signment was  made  to  him  except  in  good  faith  and  for 
any  other  than  the  consideration  stated. 

THE  CHANCELLOK.  The  first  question  to  be  determined 
is,  whether  the  bond  and  mortgage  made  by  McMurtrie 
and  King  to  Peter  Williamson  are  bonafide  securities,  and 
entitled  to  priority  of  payment  out  of  the  funds  in  the 
hands  of  the  assignee,  Philip  J.  Gray. 

The  bill  does  not  question  the  bona  fides  of  the  bond 
and  mortgage.  On  the  contrary,  the  equity  of  the  com- 
plainant is  founded  on  the  validity  of  these  securities. 
Nor  does  the  assignee  question  their  validity.  We  must 
assume,  therefore,  that  the  dissolution  of  the  partnership 
existing  between  McMurtrie,  King  and  Williamson  was 
in  good  faith,  and  that  the  bond  and  mortgage  were  exe- 
cuted honestly,  and  as  a  fair  consideration  to  Williamson 
for  his  interest  in  the  concern  ;  and  that  the  withdrawal 
of  Williamson  from  the  firm,  and  the  assumption  by  Ben- 
jamin McMurtrie  and  Julius  King  of  the  partnership 
debts,  was  made  honestly  and  without  any  intention  to 
defraud  either  the  complainants  or  any  other  creditor  of 
the  firm.  From  the  character  of  these  pleadings,  we  are 
relieved  from  considering  to  what  extent  subsequent  lona 
fide  creditors  are  affected  by  a  chattel  mortgage  such  as 
this,  when  the  property  is  suffered  to  remain  in  the  cus- 
tody and  use  of  the  mortgagor.  When  the  assignment 


MAY  TERM,  1855.  327 

Doughten  o.  Gray. 

•was  made  to  Gray,  the  mortgage  was  a  valid  and  subsisting 
lien  upon  the  property  assigned.  The  assignee  having 
sold  the  property,  and  converted  it  into  money,  the  person 
who  can  legally  claim  under  the  mortgage  has  an  equitable 
lien  upon  the  funds  in  the  assignee's  hands  for  the  payment 
of  this  security. 

The  next  question  is,  who  is  entitled  to  the  mortgage 
fund  ?  James  Molyneaux  claims  it  by  virtue  of  his  assign- 
ment. The  complainants  claim  it  on  two  grounds :  first, 
by  virtue  of  a  legal  and  equitable  lien,  which  they  insist 
is  superior  to  the  right  of  the  assignee,  admitting  his 
assignment  to  be  valid ;  and  secondly,  they  contend  that 
the  assignment  is  fraudulent,  and  under  that  aspect  of 
the  case  insist,  that  as  judgment  creditors  of  Williamson, 
they  have  a  right  to  a  discovery  of  his  assets  in  the 
hands  of  the  assignee  of  the  mortgage,  and  to  have  the 
mortgage  money  appropriated  to  the  payment  of  their 
debt. 

The  complainants  recovered  a  judgment  against  Mc- 
Murtrie,  King  <fc  Co.,  as  late  partners,  of  which  Peter 
Williamson  was  one.  He  had  retired  from  the  firm,  aiid 
the  business  was  continued  by  McMurtrie  and  King.  On 
Williamson's  retiring  from  the  firm,  he  had*  taken  the 
mortgage  in  question,  covering  all  the  machinery  which 
was  used  in  carrying  on  the  business  of  the  copartner- 
ship. The  judgment  was  recovered  on  the  5th  of  Decem- 
ber, 1853,  and  on  that  day  a  levy  was  made  by  the  sheriff 
on  all  the  mortgaged  property.  On  the  seventeenth  day 
of  December  following  the  levy,  the  bond  and  mortgage 
were  assigned  to  the  defendant,  James  Molyneaux. 

The  complainants  contend,  that  by  virtue  of  the  mortgage, 
the  legal  title  to  the  mortgaged  property  was  in  Peter 
Williamson  ;  that  they  had  a  right  to  levy  upon,  and  sell 
his  interest  in  the  property  under  their  judgment  and  exe- 
cution, and  that  the  assignment  of  the  mortgage  to  Moly- 
neaux, being  subsequent  to  their  levy,  the  assignee  can  take 
only  subject  to  their  judgment  and  execution. 


328  CASES  IN  CHANCERY. 

Doughten  v.  Gray. 

The  question  is,  whether  the  interest  of  a  mortgagee  in 
personal  property,  when  the  possession  remains  with  the 
mortgagor,  and  before  condition  broken,  can  be  taken  in 
execution  as  the  property  of  the  mortgage  ? 

HilUard,  in  his  Treatise  on  Mortgages,  vol.  2,^9.  270,  has 
collected  the  authorities  in  the  different  states  upon  this 
subject.  "Whatever  may  be  the  weight  of  authority,  I 
have  no  doubt  as  to  the  law  in  New  Jersey.  A  mortgagor's 
interest  in  personal  property  is  the  subject  of  execution 
and  sale,  a  mortgagee's  interest  is  not.  It  is  useless 
to  talk  about  the  mere  form  of  the  conveyance,  and  of  its 
conveying  all  the  legal  title  to  the  mortgagee,  leaving  only 
a  mere  equity  of  redemption  in  the  mortgagor.  "We  must 
look  at  the  real  character  of  the  instrument,  and  of  the 
rights  of  the  parties  under  it.  The  intention  of  the  par- 
ties is,  that  the  conveyance  shall  be  a  mere  security  for  a 
debt.  If  the  debt  is  paid,  the  mortgage  deed  is  a  dead 
letter,  and  no  reconveyance  is  necessary  to  change  £he 
title  to  the  property.  The  mortgagor  is  in  possession,  and 
his  title  is  a  perfect  one,  subject  only  to  the  payment  of 
the  debt.  He  is  the  real  and  substantial  owner  of  the 
property  for  every  valuable  purpose.  He  may  sell  it, 
subject,  of  course,  to  the  mortgage.  The  mortgagee  has 
no  control  over  the  property  until  his  debt  is  due,  and  then 
he  can  take  it  only  for  the  purpose  of  making  his  debt  out 
of  it. 

In  New  Jersey,  the  same  doctrine  prevails  as  to  the  re- 
spective rights  of  mortgagor  and  mortgagee  of  personal 
property,  and  as  to  the  character  of  their  respective  inte- 
rests, as  governs  mortgages  of  real  property.  The  estate 
of  a  mortgagee  of  real  property  cannot  be  sold  in  New 
Jersey  for  the  mortgagee's  debt,  even  after  a  default  and 
a  forfeiture  of  the  condition  of  the  mortgage,  unless  the 
mortgagee  is  actually  in  possession  under  his  mortgage. 
An  equity  of  redemption  has  always  been,  in  New  Jersey, 
the  subject  of  sale,  and  not  by  virtue  of  any  statute  either, 
as  was  supposed  by  counsel  in  the  argument,  but  because 


MAY  TEEM,  1854.  329 

Doughten  r.  Gray. 

Our  courts  of  law  followed  the  good  sense  of  courts  of 
equity  in  this  respect,  in  spite  of  mere  technicalities,  and 
considered  the  mortgagor,  as  he  actually  is,  the  real  owner 
of  the  property. 

To  say  that  the  person  who  holds  an  estate,  as  the 
mortgagee  does,  which  at  his  death  passes  to  his  personal 
representative,  and  not  to  his  heirs  at  law,  is  superior  to 
One  which  descends  by  inheritance,  which  is  subject  to 
dower,  and  which  in  fact  possesses  all  the  qualities  of  a 
legal  estate,  and  that  the  former  may  be  sold  by  judgment 
at  law  because  it  is  a  legal  estate,  while  the  latter  cannot, 
is  sacrificing  too  much  principle  and  good  sense  to  mere 
technical  rules. 

I  am  of  opinion,  therefore,  that  the"  estate  which  Wil- 
liamson held  in  the  mortgage  property  was  not  subject  to 
an  execution  at  law,  and  that  the  levy  of  the  sheriff  con- 
stituted no  lien  upon  the  property. 

But  the  complainants  further  insist,  that  the  assignment 
of  the  mortgage  is  void  for  fraud,  and  that  the  fund  in 
the  hands  of  the  assignee  belongs  to  Williamson,  and  that 
they,  as  judgment  creditors,  under  this  bill  of  discovery, 
have  a  right  to  the  fund,  as  discovered  assets  of  their 
debtor,  to  pay  their  debt. 

If  the  assignment  is  fraudulent,  the  complainants  are 
entitled  to  have  the  fund  appropriated  to  pay  their  judg- 
ment. Whatever  may  be  considered  the  settled  doctrine 
as  to  the  right  of  a  judgment  and  execution  creditor  to 
have  a  conveyance  declared  void  by  a  court  of  equity, 
when  the  property  transferred  is  of  a  character  not  subject 
to  be  taken  in  execution  for  the  payment  of  debts,  our 
statute  obviates  all  difficulty  upon  this  ground  by  alTord- 
ing  a  creditor  adequate  relief,  by  giving  him  a  specific 
remedy  by  his  bill  of  discovery. 

Is  the  assignment  fraudulent  ?  The  want  of  considera- 
tion, together  with  the  time  and  circumstances  under 
which  the  assignment  was  made,  are  charged  as  the  evi- 
dences of  fraud.  Molyneaux,  by  his  answer,  very  fully 

2  E* 


330  CASES  IN  CHANCEKY. 

Doughten  v.  Gray. 

denies  the  fraud.  He  alleges  and  proves,  that  the  consi- 
deration paid  by  him  was  $939.  It  was  paid  in  this  wise. 
An  old  debt  of  $175,  which  Williamson  owed  Molyneaux, 
was  given  up  and  cancelled,  and  the  balance,  being 
$764.10,  was  paid  in  cash,  as  follows ;  $370  on  the  17th 
of  December,  the  date  of  the  assignment,  $200  on  the 
19th  of  December,  and  the  residue,  $194.10  on  the  20th 
of  the  same  month.  It  thus  appears  that  the  considera- 
tion paid  was  little  less  than  fifty  per  cent,  of  the  amount 
due  on  the  mortgage.  But  although  the  assignee  gave  a 
valuable  consideration,  the  assignment  may  nevertheless 
be  fraudulent.  If  the  purchase  was  not  bonafide,  but  was 
made  to  defraud  creditors,  the  conveyance  is  not  valid, 
although  the  consideration  was  a  valuable,  and  even  an 
adequate  consideration.  Tuyne's  case  3  Co.  It.  81.  It  is 
said  the  price  was  inadequate.  This  of  itself  will  not  de- 
feat the  assignment,  unless  the  price  is  so  grossly  inade- 
quate as  to  be  of  itself  evidence  of  fraud.  Such  is  not 
the  case  here.  The  security  was  an  uncertain  one  in  some 
respects.  The  mortgagors  were  insolvent,  and  the  mort- 
gage property  had  been  assigned  for  the  general  benefit 
of  their  creditors.  It  had  been  sold,  and  it  was  uncertain 
whether  the  assignee  would  recognize  the  validity  of  the 
mortgage.  The  time  of  the  assignment  raises  some  sus- 
picion as  to  the  bona  fides  of  the  transaction.  "Williamson 
was  insolvent.  The  complainants  had  judgment  against 
him,  and  had  taken  steps  to  enforce  their  judgment 
against  the  mortgaged  property.  It  is  true  the  defendant, 
Molyneaux,  denies  that  he  had  knowledge  of  the  com- 
plainant's judgment  ;  but  there  are  circumstances  and 
facts  proved  inconsistent  with  the  truth  of  this  allegation. 
A  proper  inquiry  made  would  have  put  him  in  possession 
of  all  the  facts. 

After  a  careful  investigation  of  all  the  facts  of  the  case, 
I  am  not  willing  to  declare  the  assignment  absolutely  void 
for  fraud.  But  I  do  not  think,  considering  the  circum- 
stances under  which  the  assignment  was  made,  that  the 


MAY  TEEM,  1855.  331 

Lee  v.  CargilL 

assignee  should  be  permitted  to  hold  it  for  anything  more 
than  to  reimburse  himself  the  advances  he  made  upon  it. 
I  shall  direct  an  account  to  be  taken  of  the  principal  and 
interest  due  upon  the  bond  and  mortgage. 

Let  the  costs  of  all  the  parties  to  this  suit  be  first  paid 
out  of  this  fund,  and  then  Molyneux  be  reimbursed  the 
advances  made  by  him  upon  the  particular  mortgage. 
The  residue  must  go  to  the  assignee,  to  be  distributed  ac- 
cording to  law. 

CITED  in  Smithurst  v.  Edmunds,  1  McCar.  418;  Chapman  v.  Hunt,  2 
Beas.  371;  Freeman  v.  Freeman,  2  C.  E.  Gr.  47;  Miller  ads.  Pancoast, 
5  Dutch.  255. 


ISAAC  LEE  vs.  DAVID  CAEGILL  et  al. 

A  subpceena  must  be  taken  out  with  the  injunction,  and  made  returnable 
within  the  time  prescribed  by  the  rule  for  a  return  of  service  of  the  in- 
junction. 

The  rule  requires  the  injunction  to  be  served  within  ten  days  after  the  is- 
suing thereof,  and  a  return  of  service  made  to  the  court  within  twenty 
days  after  such  service. 


Mr.  Schenck  now  moved  to  dissolve  the  injunction 
granted  on  filing  the  bill,  and  among  other  grounds  be- 
cause subpoenas  had  not  been  issued. 

H.  V.  Speer,  contra. 

THE  CHANCELLOR.  "When  this  injunction  was  allowed, 
it  was  with  some  reluctance,  from  the  fact,  that  the  com- 
plainant had  not  applied  to  the  court  for  protection  with 
as  much  promptness  as  he  ought.  It  now  appears  he  is  in 
default  in  not  issuing  his  subpoenas  with  proper  diligence. 
The  injunction  was  granted  on  the  Cth  day  of  February, 
the  first  day  of  the  last  term  of  the  court,  and  up  to  the 
time  of  this  application,  April  4th,  no  subpoenas  have 
been  returned.  As,  by  the  statute,  a  subpoena  may  bo  re- 
turned in  vacation,  and  the  legislature  has  endeavored,  by 
late  enactments,  to  facilitate  proceedings  in  this  court,  it 
must  be  exacted  of  every  party  that  he  use  due  diligence 


332  CASES  IN  CHANCEKY. 

Johnson  v.  Hubbell. 

in  expediting  his  cause.  The  subpoena  must  be  taken  out 
with  the  injunction.  The  rule  of  the  court  requires  the 
injunction  to  be  served  within  ten  days  after  the  issuing 
thereof,  and  a  return  of  service  made  to  the  court  within 
twenty  days  after  such  service.  The  practice  will  be  here- 
after strictly  followed  requiring  the  subpoena  to  be  taken 
out  with  the  writ  of  injunction,  and  returned  to  the  court 
within  the  time  prescribed  by  the  rule  for  a  return  of  ser- 
vice of  the  injunction. 

In  this  case  the  complainant  is  in  laches  according  to 
the  practice  heretofore  adopted.  West  v.  Smith,  1  Green? s 
Ch.  Rep.  309 ;  1  Hoist.  Dig.  535,  §1 ;  and  the  injunction 
must  be  dissolved  with  costs. 

CITED  in  Brown  v.  Fuller,  2  Beas.  274;  Hoagland  v.  Titus,  I  McCar.  82; 
Schalk  v.  Schmidt,  1  McCar.  271. 


ROBERT  C.  JOHNSON  vs.  ANNA  G.  HUBBELL  and  others. 

A  person  may  make  an  agreement,  which  will  be  legally  binding  upon  him, 

to  make  a  particular  disposition  of  his  property  by  last  will. 
A  court  of  equity  will  decree  the  specific  performance  of  such  an  agreement 

upon  the  principles  which  govern  the  court  in  the  exercise  of  this  branch 

of  its  jurisdiction. 
Although  the  agreement  is  by  parol,  if  there  is  a  part  performance  of  such  a 

character,  as  upon  the  principles  recognized  by  the  court,  will  take  a  parol 

agreement  out  of  the  statute  of  frauds,  then  there  is  nothing  peculiar 

about  an  agreement  of  this  kind  to  exclude  it  from  the  operation  of  those 

principles. 
If  one  party  to  a  parol  agreement  has  wholly,  or  partially,  performed  it  on 

his  part,  so  that  its  non-fulfillment  by  the  other  party  is  a  fraud,  the  court 

will  compel  a  performance. 
Although  a  party  has  a  right  to  the  protection  of  the  coiirt,  if  that  protection 

cannot  be  given  him  without  invading  the  rights  of  innocent  parties,  its 

aid  will  be  refused. 


John  T.  Nixon  and  William  L.  Dayton,  for  complainant. 

A.  Sinnickson,  J.  F.  Randolph,  and  A.  Browning,  for 
defendants. 


OCTOBER  TEEM,  1855.  823 


Johnson  v.  Hubbel. 


THE  CHANCELLOR.  Hannah  Johnson,  the  mother  of  the 
complainant,  died  in  the  year  1811.  At  the  time  of  her 
marriage  with  the  complainant's  father,  Robert  Johnson, 
she  was  seized  and  possessed  of  a  very  large  and  valuable 
estate  in  the  county  of  Salem.  During  the  coverture,  she 
joined  with  her  husband  in  the  conveyance  of  a  part  of 
this  estate,  for  the  consideration  of  twenty  thousand  dol- 
lars, which  consideration  was  received  by  her  husband, 
and  by  him  expended  in  the  improvement  of  real  estate 
which  he  held  in  his  own  right.  At  her  death,  the  value 
of -the  real  estate  which  Hannah  Johnson  left  was  about 
eighty  thousand  dollars.  She  left  two  children,  who  in- 
herited this  estate,  the  complainant  and  his  sister,  Anna 
G.  Hubbell,  one  of  the  defendants  to  this  suit.  By  the 
then  existing  laws  of  this  state  regulating  descents,  the 
complainant  was  entitled  to  two-thirds,  and  his  sister  to 
one-third,  of  the  estate  which  they  inherited  from  their 
mother.  Robert  Johnson,  the  father,  being  tenant  by  the 
curtesy,  was  in  the  possession  of  the  real  estate  of  his 
wife,  and  received  the  rents  and  profits  up  to  the  time  of 
his  death,  in  1850.  Before  the  complainant  came  of  age, 
his  father  complained  to  his  son  of  the  inequality  of  the 
disposition  made  by  the  law  of  his  mother's  estate,  and 
expressed  to  him  his  wishes,  that  when  his  son  should 
arrive  at  age,  he  would  divide  his  mother's  property 
equally  with  his  sister  ;  and  his  father  said  to  his  son,  if 
he  would  make  such  equal  division,  then  that  he  would; 
leave  his  estate  equally  between  his  two  children,  and1 
that  if  his  son  did  not  so  divide  it,  then  he  would  feel! 
constrained  to  make,  by  will,  an  unequal  division  of  his 
own  estate  between  his  son  and  daughter,  and  leave  the 
larger  portion  td  his  daughter.  The  daughter  was  present 
at  this  time,  and  expressed  her  concurrence  in  the  views 
of  her  father. 

Shortly  after  the  complainant  came  of  ago,  the  father 
took  his  two  children  into  his  private  office,  and  there 
produced  and  laid  before  them  the  title  papers  and  maps 


334  CASES  IK  CHANCERY. 


Johnson  v.  Hubbell. 


of  their  mother's  estate,  and  also  of  his  own  real  estate, 
and  explained  to  them  the  location  and  value  of  the  re- 
spective portions,  and  urged  the  complainant  to  divide 
equally  with  his  sister  their  mother's  estate.  The  father 
then  agreed  and  promised,  in  the  presence  of  his  daugh- 
ter, that  if  his  son  would  execute  the  necessary  deeds  for 
an  equal  partition  of  the  mother's  estate,  that  he  would 
leave  all  his  own  property  equally  to_  his  children,  share 
and  share  alike.  He  at  the  same  time  declared,  that  if  his 
son  refused  to  comply  with  his  wishes,  that  he  would 
leave  his  estate  to  his  daughter,  which  would  make  her 
share  in  both  estates  more  than  equal  to  his  son's.  In 
consideration  of  the  promise  and  agreement  so  made  by 
his  father,  the  son  agreed  that  an  equal  division  of  his 
mother's  estate  should  be  made  between  himself  and  sis- 
ter, and  that  the  father  should  make  the  division  so  agreed 
upon. 

To  carry  out  the  agreement,  deeds  were  drawn  and 
prepared,  under  the  direction  of  the  father.  After  the 
papers  were  prepared,  he  called  his  children  again  into 
his  office,  and  there  remarked  to  the  officer,  who  was  then 
present  to  take  the  acknowledgments  of  the  deeds,  that 
it  was  unnecessary  to  enter  into  a  minute  explanation  of 
the  character  of  the  deeds,  as  his  children  knew  all  about 
them.  Mutual  releases,  between  the  son  and  daughter, 
were  then  executed  to  complete  the  division.  These  pa- 
pers were  executed,  and  bear  date  the  7th  of  September, 
1833. 

On  the  12th  of  October,  1836,  Anna  G.  Hubbell  con- 
veyed to  her  father  a  part  of  the  land,  which,  in  the  divi- 
sion, was  released  to  her  by  the  complainant,  and  known 
by  the  name  of  the  "  Guinea  farm."  The  consideration 
expressed  in  the  deed  was  $2000.  The  actual  value  of  the 
farm  was  $20,000. 

On  the  20th  of  April,  1850,  Robert  Johnson  made  his 
last  will,  by  which  he  entirely  cut  off  and  excluded  his 
son  from  all  right  and  participation  in  his  estate  therein 


MAY  TEEM,  1855.  335 


Johnson  v.  Hubbell. 


devised.  As  to  the  "  Guinea  farm"  he  died  intestate.  All 
the  rest  of  his  property,  which  was  very  large  and  valuable 
real  estate,  he  disposed  of  by  his  will.  A  very  large  pro- 
tion  of  it  he  devised  to  his  daughter  for  life,  and  at  her 
death  to  her  three  children,  in  fee  simple,  or  in  case  of 
their  death  to  other  devisees  named  in  the  will.  The  resi- 
due of  his  real  estate  mentioned  in  the  will,  the  testator 
devised  to  his  two  nephews,  Thomas  and  Andrew  Sin- 
nicks  on. 

Robert  G.  Johnson  died  in  October,  1850,  and  the  de- 
visees are  in  possession  under  the  will. 

These  are  the  facts  stated  in  the  bill.  The  bill  is  demurred 
to,  and  these  facts  must  be  taken  as  true.  The  bill 
prays  that  the  agreement  between  the  complainant  and 
the  said  Robert  G.  Johnson  may  be  specifically  performed 
and  carried  into  execution  by  the  defendants,  and  they 
be  decreed  to  convey  to  the  complainant  the  equal  one 
half  part  of  the  estate  of  the  said  Robert  G.  Johnson  ;  or, 
if  it  should  be  deemed  more  equitable  and  just,  that  the 
said  Anna  G.  Hubbell,  be  decreed  to  reconvey  to  the  com- 
plainant the  land  which  she  received  from  the  complainant 
as  the  consideration  for  the  performance  of  his  part  of  the 
said  agreement. 

There  can  be  no  doubt  but  that  a  person  may  make  a 
valid  agreement  binding  himself  legally  to  make  a  par- 
ticular disposition  of  his  property  by  last  will  and  testa- 
ment. The  law  permits  a  man  to  dispose  of  his  own  pro- 
perty at  his  pleasure,  and  no  good  reason  can  be  assigned 
why  he  may  not  make  a  legal  agreement  to  dispose  of  his 
property  to  a  particular  individual,  or  for  a  particular  pur- 
pose, as  well  by  will  as  by  a  conveyance  to  be  made  at 
some  specified  future  period  or  upon  the  happening  of 
some  future  event.  It  may  be  unwise  for  a  man,  in  this 
way,  to  embarrass  himself  as  to  the  final  disposition  of 
his  property,  but  he  is  the  disposer,  by  law,  of  his  own 
fortune,  and  the  sole  and  best  judge  as  to  the  time  and 
manner  of  disposing  it.  A  court  of  equity  will  decree 


336  CASES  IN"  CHANCERY. 

Johnson  v.  Hubbell. 

the  specific  performance  of  such  an  agreement  upon  the  re- 
cognised principles  by  which  it  is  governed  in  the  exercise 
of  this  branch  of  its  jurisdiction.  In  the  case  of  Rivers 
against  The  Executors  of  Rivers  (3  Dessau.  Rep.  195),  the 
court,  in  sustaining  the  propriety  of  a  court  of  equity's 
recognising  and  enforcing  such  an  agreement,  very  pro- 
perly remarked,  that  a  man  might  renounce  every  power, 
benefit,  or  right  which  the  laws  give  him,  and  he  will  be 
bound  by  his  agreement  to  do  so,  provided  the  agreement 
be  entered  into  fairly,  without  surprise,  imposition  or  fraud, 
and  that  it  be  reasonable  and  moral. 

In  Izard  v.  Executor  of  [zard  (1  Dessau.  Rep.  116)  there 
is  a  note  to  the  case,  in  which  most  of  the  old  authorities 
bearing  upon  this  subject  are  collected.  There  are  two 
classes  of  authorities  there  collected,  one  of  which  relates 
to  the  subject  of  agreements  by  two  parties  to  make  mutual 
wills  in  favor  of  each  other,  on  certain  contingencies ; 
and  the  other,  in  which  courts  of  equity  have  decreed  the 
specific  performance  of  agreements  connected  with  the  testa- 
mentary or  other  settlements.  In  addition  to  the  cases  cited 
in  this  note,  I  would  refer  to  the  case  of  Lord  Walpole 
v.  Lord  Oxfwdj  (3  Ves.  402),  and  the  same  case  in  (7  D.  c& 
E.  138),  and  Lewis  v.  MaddocJcs  (6  Ves.  Jr.  150) ;  Fortescue 
v.  Hannah  (19  Ves.  71),  and  a  note  in  which  a  report  of 
the  case  of  Jones  and  wife  v.  Martin  (3  Anst.  882),  is 
given  at  length ;  Podmore  v.  Gunning  (9  Sim.  6M) ; 
Moor  house  v.  Colvin  (9  E.  L.  <&  E.  Rep.  136). 

The  case  of  Jones  and  wife  v.  Martin  was  this  :  By  arti- 
cles executed  upon  the  marriage  of  Mr.  and  Mrs.  Jones, 
the  father  of  Mrs.  Jones  covenanted  to  leave  her,  upon  his 
death,  certain  tenements  ;  and  that  he  would  at  his  decease, 
by  his  will,  give  and  leave  her  a  full  and  equal  share, 
with  her  brother  and  sister,  of  all  his  personal  estate,  to 
be  held  and  enjoyed  immediately  after  the  decease  of  him- 
self and  his  wife,  and  not  before.  The  father,  for  the  pur- 
pose of  defeating  the  articles  of  settlement,  conveyed  a 
large  part  of  his  property,  consisting  of  East  India  stock, 


MA,Y  TEEM,  1855.  337 


Johnson  v.  HubbelL 


to  his  son.  On  appeal,  it  was  decreed  that  the  stock  and 
dividends  were  subject  to  the  convenants.  In  the  case  of 
Fortescue  v.  Hennah  (19  Ves.  66)  it  was  determined,  that 
where  a  father,  by  indenture,  covenants  for  an  equal  divi- 
sion, at  his  death,  of  all  the  property  he  should  die  seized 
or  possessed  of  between  his  two  daughters  or  their  fami- 
lies, though  he  retains  the  power  of  free  disposition  by 
act  in  his  life,  cannot  defeat  the  covenant  by  a  disposition 
in  effect  testamentary,  as  by  reserving  to  himself  an  in- 
terest for  life.  Following  the  principles  established  by 
these  authorities,  it  was  decided  in  the  case  of  JRivers 
against  Rivers'  executors,  before  referred  to,  that  where  a 
woman  about  to  marry  a  man  had  agreed  in  writing  to 
renounce  all  claims  on  his  estate  on  his  agreeing  to  make 
adequate  provision  for  her,  and  had  made  provision  for 
her  by  will  and  deed,  that  the  court  would  see  the  agree- 
ment executed  by  enlarging  the  provisions,  if,  in  the  opin- 
ion of  the  court,  it  was  not  an  adequate  provision  in  pro- 
portion to  the  estate.  The  authority  established  in  all  these 
cases  has  recently  been  very  fully  recognized  in  the  House 
of  Lords,  in  the  case  of  Logan  v.  Wienholt  (7  BligNs  R. 
53,  54,)  and  the  substance  of  which  is  given,  as  follows, 
in  2  Story's  Eq.  §  786.  If  a  person  covenants,  or  agrees, 
or  in  any  other  manner  validly  binds  himself  to  give  to 
A.,  by  his  will,  as  much  property  as  he  gives  to  any  other 
child,  he  may  put  it  out  of  his  power  to  do  so  by  giving 
away  all  his  property  in  his  lifetime  ;  or,  if  he  binds  him- 
self to  give  to  A.  as  much  as  he  gives  to  B.,  by  his  will, 
he  may,  in  his  lifetime,  give  to  B.  what  he  pleases,  so  as, 
by  his  will,  he  shall  give  to  A.  as  much  as  he  gives  to  B. 
But  then  the  gifts  which  he  makes  in  his  lifetime  to  B. 
must  be  out  and  out.  For  if,  to  defraud  or  defeat  the  ob- 
ligation which  he  has  thus  entered  into,  he  gives  to  B. 
any  property,  real  or  personal,  over  which  he  retains  a 
control,  or  in  which  he  reserves  an  interest  to  himself, 
then,  in  order  to  protect  the  agreement  or  obligation,  and 
to  prevent  his  escaping,  as  it  were,  from  his  own  contract, 
VOL.  n.  2p 


338  CASES  IN  CHANCERY. 

Johnson  v.  HubbelL 

courts  of  equity  will  treat  this  gift  to  B.  in  the  same  man- 
ner as  if  it  were  purely  testamentary,  and  were  included  in 
a  will ;  and  the  subject  matter  of  the  gift  will  be  brought 
back,  and  made  the  fund  out  of  which  to  perform  the  ob- 
ligation. At  all  events,  it  will  be  made  the  measure  for 
calculating  and  ordering  the  performance  of,  and  dealing 
with,  the  claim  arising  under  the  agreement  or  obligation. 

This  agreement,  then,  made  between  the  complainant 
and  his  father  was  a  legal  agreement.  And  this  court 
should  decree  its  execution,  if,  in  the  exercise  of  its  legal 
discretion,  it  can  do  it  without  violating  any  principle  of 
equity  or  doing  injustice  to  any  third  party  who  may  be 
innocently  involved  in  the  transaction.  Generally,  the 
agreement  may  be  enforced  without  any  embarrassment. 
If  A.  enters  into  an  agreement,  for  which  he  receives  a 
good  consideration  with  B.,  to  give  him  his  property  by 
will,  and  in  violation  of  his  agreement  he  gives  it,  by  his 
will,  to  C.,  the  court  will  declare  C.  a  trustee  for  B.  In 
doing  this,  it  does  C.  no  wrong.  A.  having  undertaken  to 
make  to  C.  a  voluntary  gift  of  that  which  he  had  no  right 
in  law  so  to  dispose  of,  the  court  does  C.  no  injustice,  and 
violates  none  of  his  rights,  by  declaring  him  a  mere  trus- 
tee. To  permit  C.  to  hold  the  property  as  against  B.,  the 
court  would  sanction  the  fraud  which  A.  had  committed 
in  disposing  of  the  property  in  violation  of  his  agree- 
ment. 

Several  objections  are  made  to  the  court's  decreeing  a 
specific  performance  in  this  case,  in  addition  to  the  general 
one  which  I  have  considered. 

It  is  said,  that  this  agreement  was  in  parol,  and  is  there- 
fore contrary  to  the  statute  of  frauds.  But  although  this 
agreement  was  a  mere  parol  one,  if  there  was  a  part  per- 
formance of  it,  of  such  a  character  as,  upon  the  principles 
recognized  and  acted  upon  by  this  court,  will  take  a  parol 
agreement  out  of  the  statute,  then  there  is  nothing  pecu- 
liar about  an  agreement  of  this  kind  to  exclude  it  from 
the  operation  of  those  principles.  If  one  party  to  a  parol 


MAY  TEEM,  1855.  339 


Johnson  v.  HubbelL 


agreement  has  wholly  or  partially  performed  it  on  his 
part,  so  that  its  nonfulfilment  by  the  other  party  is  a  fraud, 
the  court  will  compel  a  performance.  In  this  case,  the 
son  performed  his  part  of  the  agreement.  He  paid  a  valu- 
able consideration,  and  parted  with  his  property.  In  fact 
everything  was  done  and  performed  by  both  parties  that 
the  character  of  the  transaction  would  admit  of.  The  part 
of  the  agreement  which  the  son  was  to  perform  was  to  be 
performed  in  prcesenti,  and  that  part  to  be  perf ormed  by 
the  father  was  to  be  performed  in  future.  There  is  no  un- 
certainty about  the  agreement  in  the  slightest  respect. 
It  is  definite  and  certain  in  every  particular.  It  is  specifi- 
cally set  out  by  the  complainant  in  his  bill,  and  the  agree- 
ment, as  alleged,  is  admitted  by  the  demurrer.  There  is 
no  objection  to  a  decree  on  the  ground  of  the  contract  not 
being  in  writing. 

It  was  again  objected  that  the  peculiar  character  of  the 
contract  is  such  as  should  induce  a  court  to  refuse  its  aid 
in  carrying  it  into  execution,  that  it  was  a  mere  promise 
made  by  a  father  to  his  son,  and  ought  not  to  be  looked 
upon  as  a  binding  agreement  ;  and  that  it  is  bad  policy  for 
the  court  to  recognize  an  agreement,  made  betwee*  a 
f ather  and  son,  that  the  father  will  devise  to  his  son  the 
whole,  or  any  considerable  portion  of  his  property  ;  that 
such  an  agreement  has  a  tendency  to  destroy  that  mutual 
relationship  which  ought  to  exist  between  father  and  son, 
and  should  not,  therefore,  be  sanctioned  by  a  court  of 
equity.  I  do  not  consider  the  agreement  in  question  ob- 
jectionable upon  any  of  these  considerations.  It  cannot 
be  regarded  as  a  mere  promise,  which  the  son  relied  upon 
as  such,  and  trusting  alone  to  the  honor  and  word  of  his 
father.  Here  was  the  son  just  of  age,  the  owner  of  a 
large  and  very  valuable  property  which  he  inherited  from 
his  mother.  There  were  but  two  children,  and  the  father 
was  himself  possessed  of  a  large  estate.  He  was  desirous 
of  &  family  arrangement  with  regard  to  both  estates.  lie 
pressed  the  propriety  of  it  upon  his  son  while  he  was  yet 


340  CASES  IN  CHANCERY. 

Johnson  v.  Hubbell. 

in  his  minority,  and  under  his  parent's  control.  He  soli- 
cited and  insisted  upon  the  arrangement  after  his  son  ar- 
rived of  age,  and  he  enforced  his  wishes,  and  exerted  his 
parental  authority,  by  declaring  to  his  son,  that  if  he  re 
•  fused  to  make  the  arrangement,  he  should  be  disinherited 
and  cut  off  from  all  share  in  his  father's  estate.  He  fixes 
the  terms  of  the  agreement  himself.  He  requires  of  his 
son,  as  his  part  of  the  agreement  to  be  performed,  that  in 
this  family  arrangement  he  shall  part  with  one-sixth  of  his 
estate.  An  agreement  or  family  arrangement  like  this  is 
favored  in  a  court  of  equity.  Marriage  settlements  and 
agreements  for  family  arrangements  with  respect  to  pro- 
perty are  viewed  with  favor  by  this  court.  They  ought  to 
be  respected  and  scrupulously  carried  out  by  the  parties  to 
them,  and  if  they  are  not,  a  court  of  equity  ought  to  en- 
force their  execution.  Does  it  not  present  a  case  for  the 
favorable  consideration  of  a  court  of  equity,  where  a  son 
arriving  at  age,  entitled  in  his  own  right  to  a  large  estate, 
obedient  to  parental  authority,  enters  into  a  family  arrange- 
ment with  his  father,  at  the  father's  request,  by  which  he 
parts  with  a  valuable  portion  of  his  inheritance,  and  that 
son  afterwards,  without  any  reason,  disinherited  by  his 
father,  comes  into  a  court  of  equity  to  ask  that  the  family 
arrangement  may  be  carried  into  execution  ?  As  far  as 
the  circumstances  of  that  arrangement  are  before  the 
court,  it  appears  to  have  been  an  equitable  one,  and  per- 
fectly proper,  and  that  gross  injustice  has  been  done  to 
the  complainant,  by  his  father's  refusing  to  comply  with 
his  agreement,  and  to  carry  out  fairly  the  family  arrange- 
ment, which  was  made  at  his  solicitation,  accompanied 
with  all  the  persuasion  and  influence  of  parental  author- 
ity. The  complainant  is  certainly  entitled  to  some  relief  ; 
and  if  there  is  any  insurmountable  difficulty  in  decreeing 
the  agreement  to  be  specifically  performed,  the  court  will 
endeavor  to  give  him  relief  in  some  other  shape. 

There  are  difficulties  in  the  way  of  enforcing  the  per- 
formance of  this  agreement  specifically,  which   appear  to 


MAY  TEEM,  1855.  341 


Johnson  v.  Hubbell. 


me  to  be  insurmountable.  The  complainant  has  a  right 
to  the  protection  of  this  court,  and  to  its  aid  in  establish- 
ing and  enforcing  his  rights.  But  if  that  protection  and 
aid  cannot  be  afforded  him  without  invading  and  disre- 
garding the  rights  of  others,  this  court  may  not,  in  its' 
anxiety  and  desire  to  relieve  one  party,  inflict  a  wrong 
and  injury  upon  another  entirely  innocent  in  the  transac- 
tion. • 

The  agreement  on  the  part  of  the  father  was,  that  he 
would  leave  all  his  property  equally  between  his  two  chil- 
dren, the  complainant  and  his  sister.  The  father  has  vio- 
lated his  agreement  as  to  both,  and  has  disappointed  the 
expectations  as  well  of  his  daughter,  as  of  the  complain- 
ant, his  son.  But  it  is  manifest  that  this  court  cannot  de- 
cree the  daughter  entitled  to  one  half  of  the  property. 
She  was  no  such  party  to  the  agreement  as  entitled  her 
to  have  it  specifically  enforced  for  her  benefit.  She  agreed 
to  nothing  on  her  part ;  there  was  nothing  on  her  part  to 
be  performed.  She  received  the  consideration  which  her 
father  exacted  for  his  part  of  the  agreement.  She  was 
benefited,  and  not  injured,  by  the  agreement,  as  far  as  it 
was  performed.  Suppose  the  court  should  declare  that 
the  complainant  has  an  attaching  equitable  trust  in  the 
testator's  estate  in  the  hands  of  the  devisees  under  the 
will,  and  is  entitled  to  one  half  that  estate.  Of  such  a 
decree  the  grandchildren  or  nephews,  who  are  devisees, 
would  have  no  right  to  complain,  because  what  the  testa- 
tor devised  to  them  he  had  no  right  so  to  dispose  of.  lie 
had  agreed  to  dispose  of  it  otherwise,  and  the  party  to 
that  agreement  claims  the  benefit  of  it.  But  not  so  with 
Mrs.  Hubbell.  By  the  agreement,  she  was  to  have  one 
equal  part  of  the  estate  with  her  brother.  She  has  been 
disappointed,  as  well  as  lie,  in  her  expectations,  and  she 
has  only  a  life  estate  in  a  part,  instead  of  a  fee  simple  in 
one  half  the  property.  How  can  I  carve  out  of  this  es- 
tate, devised  as  it  is,  the  portion  which  the  complainant 
claims  without  doing  an  injury  and  injustice  to  Mrs.  Hub- 

2  F* 


342  CASES  DsT  CHANCERY. 

Johnson  v.  Hubbell. 

bell  ?  Mrs.  Hubbell  is  not  in  any  way  responsible  for  the 
will  of  her  father.  It  is  not  alleged  that  she  controlled 
him,  or  endeavored  to  control  him,  in  making  his  will. 
She  is  an  innocent  party,  and  entitled  as  much  to  the  pro- 
tection of  the  court  as  the  complainant.  Suppose  I  was 
to  take  out  of  this  estate  one  half  of  it  for  the  complain- 
ant, I  could  not  alter  the  character  of  the  estate  which 
the  devisees  have  under  the  will  to  the  other*  half.  Mrs. 
Hubbell  then  would  necessarily  have  a  life  estate  only  in 
a  little  more  than  one  half  of  what  is  given  her  by  the 
will ;  and  yet,  retaining  all  the  will  gives  her,  it  is  not 
equal  to  the  absolute  property  in  one  half  of  the  estate, 
which,  if  the  agreement  had  been  performed,  she  would 
have  been  entitled  to. 

Now  although  the  agreement  upon  which  the  bill  is 
filed  is  a  legal  one,  it  does  not  follow  that  a  Court  of  Chan- 
cery will  decree  its  specific  performance.  It  is  not  a  matter 
of  right,  in  either  party,  that  the  court  should  make  such  a 
decree  ;  but  it  is  a  matter  of  discretion  in  the  court,  which 
withholds  or  grants  relief,  according  to  the  circumstances 
of  each  particular  case,  when  the  general  rules  and  prin- 
ciples which  govern  the  court  will  not  furnish  any  exact 
measure  of  justice  between  the  parties.  2  Story's  Eq.  Ju. 
742.  Courts  of  equity  will  not  enforce  the  specific  per- 
formance of  a  contract  at  the  instance  of  a  vendor,  where 
his  title  is  involved  in  difficulties  which  cannot  be  re- 
moved, although  it  may  be  a  case,  where,  at  law,  an  action 
may  be  maintained  for  damages  ;  or,  in  a  case  where  the 
character  and  condition  of  the  property,  to  which  the 
contract  is  attached,  have  been  so  altered,  that  the  terms 
and  restrictions  of  it  are  no  longer  applicable  to  the  ex- 
isting state  of  things  ;  or,  in  cases  where,  from  a  change 
of  circumstances  or  otherwise,  it  would  be  unconscien- 
tious  to  enforce  it.  The  proposition  may  be  more  gene- 
rally stated,  that  courts  of  equity  will  not  interfere  to  de- 
cree a  specific  performance,  except  in  cases  where  it  -would 
be  strictly  equitable  to  make  such  a  decree.  2  Story's  Eq. 
Ju.  §  749,  750,  and  notes. 


OCTOBEE  TERM,  1854.  343 


Johnson  v.  Hubbell. 


In  this  case,  the  situation  of  the  property  to  which  the 
contract  is  attached  is  such,  and  the  rights  of  third  parties 
are  so  involved  in  the  subject  matter  of  the  controversy, 
as  to  render  it  extremely  embarrassing  and  difficult  to 
carry  into  effect  a  decree  for  specific  performance.  I  arrive 
at  this  conclusion  with  less  reluctance  than  I  otherwise 
should,  from  the  consideration  that  the  complainant  is 
not  entirely  remediless  in  the  premises. 

The  consideration  of  the  agreement  on  the  part  of  the 
complainant  was,  that  he  should  convey  to  his  sister  one- 
sixth  part  of  his  inheritance  which  he  had  received  from  his 
mother.  Mrs.  Hubbell  was  present  when  the  arrangement 
was  made.  It  was  a  family  arrangement  made  between 
the  father,  son,  and  daughter.  The  daughter  assented  to 
it;  and  to  carry  out  the  family  compact,  she  accepted 
from  her  brother  a  conveyance  of  the  land,  which  was 
the  performance  of  his  part  of  the  contract.  She  accepted 
it  upon  the  terms  of  the  agreement,  which  terms,  if  faith- 
fully carried  out,  would  have  conferred  additional  benefits 
upon  herself  as  well  as  her  brother.  The  family  arrange- 
ment has  not  been  carried  out,  and  it  is  against  equity 
and  good  conscience  that  the  sister  should  continue  in  the 
enjoyment  of  her  brother's  land  without  compensation  or 
satisfaction. 

There  are  several  objections  interposed  to  this  form  of 
relief.  It  is  said  no  fraud  is  imputed  to  any  of  the  parties 
at  the  time  of  making  the  agreement,  and  no  fraud  is 
alleged  to  have  been  committed  by  Mrs.  Ilubbell  since ; 
that  Mrs.  Hubbell  made  no  promise  which  was  to  be  ful- 
filled on  her  part,  and  that  she  is  not  responsible  for  the 
nonfulfilment  of  the  agreement  by  her  father. 

The  fraud  of  the  father  was  in  not  making  his  will,  and 
dividing  his  estate  between  his  children.  It  does  not  divest 

O 

the  breach  or  nonfulfilment  of  the  contract  of  its  fraudu- 
lent character  because  the  fraud  was  not  meditated  at  the 
time  the  agreement  was  made.  The  fraud  of  the  'daugh- 
ter consists  in  retaining  her  brother's  land  without  consi- 


3M  CASES  IN"  CHANCEKY. 

Lathrop  v.   Gilbert. 

deration,  which  is  against  good  conscience.  It  is  to  pro- 
tect the  complainant  against  this  fraud  that  this  mode  of 
relief  is  proper.  That  Mrs.  Hubbell  made  no  agreement 
or  promise  with  her  brother  that  she  would  be  respon- 
sible that  the  contract  should  be  carried  out,  does  not 
make  it  the  less  unconscionable  that  she  should  hold  her 
brother's  land,  conveyed  to  her  under  a  family  compact 
made  for  their  mutual  benefit,  which  has  failed  of  execu- 
tion through  default  of  either  of  them,  but  of  a  third 
party.  She  accepted  the  land  under  the  family  arrange- 
ment ;  that  arrangement  has  fallen  through.  The  posi- 
tion of  the  complainant  is  of  some  consideration  with  the 
court.  She  was  one  of  the  heirs  at  law  of  Robert  G. 
Johnson.  He  is  not  only  a  sufferer  by  the  father's  viola- 
tion of  the  agreement,  but  without  cause  has  been  disin- 
herited ;  and  that  which  in  law  and  justice  belonged  to 
him  by  his  double  right  as  heir  and  by  contract,  is  all,  or 
nearly  all,  bestowed  upon  his  sister  and  her  children. 
Under  such  circumstances,  to  permit  the  sister  to  enjoy, 
without  any  consideration,  a  part  of  that  inheritance 
which  the  complainant  derived  from  his  mother  is  unjust, 
and  a  court  of  equity  ought  to  prevent  it. 

This  relief  the  complainant  is  not  entitled  to  under  the 
present  bill,  as  it  is  framed.  The  demurrer  is  therefore 
well  taken,  and  must  be  sustained  with  costs.  The  com- 
plainant is  at  liberty  to  amend  his  bill,  if  he  sees  proper, 
upon  the  usual  terms,  so  as  to  adapt  it  to  the  views  I  have 
expressed  and  to  the  relief  suggested. 

CITED  in  Van  Duyne  v.    Vreeland,  1  Beas.  147 ;  Damson  v.  Damson,  2 
Seas.  252;  Smith  v.  Smith's  Admnrs.,  4  Dutch.  216. 


LEBBEUS  ~W.  LATHEOP  and  wife  vs.  COLGATE  GILBEET  et  al. 

A  father  placed  trust  funds  in  the  hands  of  his  son-in-law,  for  the  benefit  of 
his  daughter.  The  son-in-law  purchased  real  estate  with  the  trust  funds, 
and  took  the  deed  in  his  own  name. 

Held,  that  the  court  would  protect  the  real  estate  against  a  judgment  and  ex- 
ecution creditor  of  the  husband. 


MAT  TEEM,  1855  345 

Lathrop  v.  Gilbert. 

Where  property  is  so  held  by  the  husband,  and  he  expends  his  own  money,  to 
a  large  amount,  in  making  improvements  upon  the  trust  property,  for  the 
purpose  of  protecting  it  from  his  creditors,  the  court  might  properly  refuse 
its  aid  in  protecting  the  trust  property,  and  certainly  would  not  interfere,ex- 
cept  so  far  as  to  protect  the  fund  in  the  property  belonging  to  the  wife. 


E.  W.  Scudder  and   W.  Hoisted,  for  complainants. 
M.  Beasley,  for  defendants. 

THE   CHANCELLOR.  On  the  first  day  of  April,  1849,  Wil- 
liam Grant  and  wife  and  Lewis  Perrine  and  wife,  for  and 
in  consideration  of  the  sum  of  five  hundred  dollars,  by 
their  deed  of  bargain  and  sale,   conveyed  to  Lebbeus  W. 
Lathrop,  trustee  of  Jane  Lathrop,  his  wife,  a  lot  of  land 
in  the  city  of  Trenton.      Since  the  conveyance,   improve- 
ments to   a  large  amount  in  value,  have  been  put  upon 
the  premises  to  be  conveyed.     Subsequent  to  the  making  of 
these  improvements,    Colgate    Gilbert  recovered  a  judg- 
ment against  Lathrop  for  upwards  of   $8000,  and  placed 
an  execution  in  the  hands  of  the  sheriff  of  the  county  of 
Mercer,  who  levied  upon  the  said  property  and  advertised 
the  same  for  sale.     The  complainants  filed  their  bill,  alleging 
that  the  said  property  was  purchased  with  the  money  of 
the  wife,  which  the  husband  held  in  trust  for  her,  and 
that  the  improvements  were  paid  for  with  the  money  of 
the  wife,  which  Lathrop,  the  husband  held   in  like   trust. 
The  bill  further  alleges,  that  when  the  deed  for  the  pro- 
perty was  drawn,  instructions  were  given  to  the  scrivener 
to  express  the  purposes  of  the  trust  in  the  deed,   but  that, 
through  inadvertance  or  want  of  skill,  he  neglected  to   do 
so.     The  bill  prays  that  the  trust  may  be  established,  and 
ihe  property  of  the  wife  be  protected  from  the  judgment 
and  execution  of  the  defendant  Gilbert.     The   defendant, 
by  his  answer,  puts  the  complainants  to  the  proof  of  their 
case. 

I   think   it  is  proved  with   sufficient  certainty  that  the 
property  was  purchased  with  trust  funds  belonging  to  the 


346  CASES  IN  CHAXCEKY. 

Lathropt).  Gilbert. 

wife,  which  were  in  the  hands  of  her  husband,  as  her 
trustee.  The  trust  money  was  the  proceeds  of  trust  pro- 
perty, which  had  been  secured  for  the  sole  benefit  of  the 
wife  by  her  father.  The  original  transaction  by  which 
the  trust  fund  was  created  is  not  impeached.  The  fund 
is  traced  into  this  property,  and  it  is  equitable  and  right 
that  this  court  should  protect  the  trust.  The  scrivener,  it 
is  proved,  was  instructed  to  d  raw  the  deed  expressing  the 
character  of  the  trust,  and  if  through  any  mistake  or 
want  of  skill  the  deed  is  not  sufficient  to  effect  the  pur- 
pose for  which  it  was  intended,  this  court  ought  to  inter- 
fere to  protect  the  rights  of  the  wife  and  establish  the 
trust.  It  is  no  objection  that,  by  the  original  terms  of  the 
trust,  the  husband  was  created  the  trustee.  A  court  of 
equity  will  protect  the  trust  property  for  the  benefit  of  the 
wife. 

But  the  judgment  creditor  insists  that  the  trust  pro- 
perty has  been  managed  and  used  by  the  husband  and 
wife  for  the  fraudulent  purpose  of  covering  up  the  hus- 
band's property,  and  protecting  it  from  his  creditors ;  that 
the  husband's  money,  to  a  large  amount,  has  been  ex- 
pended in  improvements  upon  the  property,  and  that  the 
husband  is  enjoying  the  benefit  of  these  improvements, 
and  that  he  is  thus  using  the  trust  property  to  cover  up 
and  protect  his  own  property  from  his  creditors.  If  such  a 
case  were  clearly  proved,  this  court  might  properly  refuse 
its  aid  to  the  wife  altogether,  and  leave  the  parties  to  pro- 
tect themselves,  at  law,  in  the  best  way  they  could.  Cer- 
tainly this  court  would  not  interfere  in  such  a  case,  ex- 
cept so  far  as  might  be  necessary  to  protect  the  actual 
fund  in  the  property  which  hona  fide  belonged  to  the  wife. 
Whether  it  would  protect  the  trust  fund  at  all,  would  de- 
pend, in  a  measure,  upon  what  participation  the  wife  had 
in  the  fraud.  The  principle  never  would  be  tolerated 
which  should  establish,  that  an  insolvent  husband  might 
purchase,  as  trustee  for  his  wife,  and  with  his  wife's  mo- 
ney, a  lot  of  land  for  five  hundred  dollars,  then  put  im- 


MAY  TEEM,  1855.  347 

Doughty  v.  Doughty. 

provements  on  it  with  his  own  money  to  the  amount  of 
three  or  four  thousand  dollars,  and  in  this  way  protect  his 
own  property  from  his  creditors  under  cover  of  the  trust. 
A  court  of  equity  will  not  countenance  fraud  in  any  shape. 
The  more  artful  its  effort  at  concealment,  the  more  search- 
ing and  zealous  will  the  court  be  to  detect  it  and  defeat  its 
design. 

But  I  do  not  think  the  evidence  in  this  case  sufficient 
to  establish  such  fraud.  The  trust  money  which  the  hus- 
band had  in  his  hands  was  sufficient  to  pay  for  all  the  im- 
provements put  upon  the  property.  The  fund  is  traced, 
perhaps  with  as  much  certainty  as  the  nature  of  the  trans- 
action would  admit,  from  its  original  investment  by  the 
father  of  Mrs.  Lathrop  through  its  several  reinvestments, 
down  to  the  purchase  of  the  property  in  question,  and  the 
improvements  made  upon  it.  If  the  deed,  made  by 
Messrs.  Grant  and  Perrine  to  the  husband,  had  expressed 
the  trust  with  sufficient  certainty,  there  is  no  evidence  in 
this  cause  of  a  character  to  impeach  that  trust.  I  think 
it  fair  and  equitable  to  look  at  the  case  in  this  light.  The 
court  is  only  placing  the  wife  in  the  same  position  she  ought 
to  have  been  placed  by  that  deed. 

The  complainants  are  entitled  to  a  decree,  but  without 
costs. 

CITED  in  Besson  v.  Eceland,  11  C.  E.  O.,  471;  African  M.  E.  Church  v. 
Conover,  12  C.  E.  Gr.  161. 


ENOCH  DOUGHTY  vs.  SARAH  DOUGHTY,  executrix. 

A  brings  an  action  at  law  against  B.  B.  files  his  bill  in  this  court,  and  en- 
joins A.  from  prosecuting  his  action  at  law.  Afterwards  the  bill  is  dis- 
missed. This  court,  upon  a  bill  filed  by  A.,  will  prevent  B.  from  taking 
advantage,  by  a  plea  of  the  statute  of  limitations,  of  the  time  which  A. 
was  enjoined,  by  the  process  of  this  court,  from  prosecuting  his  action  at 
law,  if  B.  obtained  that  advantage  by  the  action  of  this  court  in  the  suit 
instituted  by  B. 

Where  a  court  of  equity  has,  by  the  solicitation  of  a  suitor  invoking  the  aid 
of  the  court  for  his  relief,  interfered  with  the  legal  rights  of  another,  and 
impaired  his  legal  remedy,  it  is  the  duty  of  this  court  to  protect  the  party 


348  CASES  IN  CHANCERY. 

Doughty  v.  Doughty. 

whose  rights  have  been  thus  interfered  with  against  any  undue  advantage 
attempted  to  be  taken  by  the  other  party  at  whose  solicitation  the  power 
of  this  court  was  called  into  action. 

One  acknowledged  principle  on  which  courts  of  equity  give  relief,  is  to  pre- 
vent an  advantage  gained  at  law  from  being  used  against  conscience. 

It  appearing,  in  this  case,  that  the  party  lost  his  legal  remedy,  not  by  the  ac- 
tion of  this  court,  but  through  his  own  laches  and  negligence,  relief  was 
denied. 


James  Wilson,  for  complainant. 
W.  Hoisted,  for  defendant. 

THE  CHANCELLOR.  At  September  term,  1845,  of  the 
Circuit  Court  of  the  county  of  Atlantic,  Enoch  Doughty, 
the  complainant,  commenced  a  suit,  by  summons  in  as- 
sumpsit,  against  Nathaniel  Doughty,  the  defendant's  testa- 
tor. The  bill  alleges  that  the  suit  was  brought  to  recover 
a  debt  of  upwards  of  $3000,  which  Nathaniel  Doughty 
owed  the  complainant  on  book  of  account.  On  the  second 
of  December,  1845,  Nathaniel  Doughty  filed  his  bill  in 
this  court,  and  obtained  an  injunction  against  the  com- 
plainant, enjoining  him  from  further  prosecuting  his  said 
suit  at  law.  There  was  a  protracted  litigation  in  the  suit 
in  chancery,  which  was  finally  determined  in  the  Court 
of  Errors  and  Appeals.  The  result  was,  that  on  the  19th 
of  March,  eighteen  hundred  and  fifty,  the  bill  was  dis- 
missed, with  costs,  upon  its  merits. 

Nathaniel  Doughty  died  the  23d  November,  1852,  and 
the  defendant  took  out  letters  testamentary  upon  his  will, 
of  which  she  was  the  executrix.  On  the  24th  of  Novem- 
ber, eighteen  hundred  and  fifty-four,  the  complainant  com- 
menced a  suit  at  law  in  the  Atlantic  Circuit  Court  by 
snmmons  in  assumpsit  against  the  defendant.  The  bill 
alleges  that  this  suit  at  law  is  for  the  same  cause  of  action 

O 

for  which  the  suit  at  law  against  Nathaniel  Doughty  was 
brought  and  the  prosecution  of  which  was  restrained  by 
the  injunction  of  this  court. 

It  appears,  then,  by  the  statement  of  the  bill,  that  little 


MAY  TEEM,  1855.  349 

Doughty  v.  Doughty. 

upwards  of  eleven  years  elapsed  between  the  commence- 
ment of  the  first  and  of  the  second  suit  at  law ;  that  the 
first  suit  was  enjoined  by  this  court  for  about  four  years 
and  six  months  ;  that  a  period  of  about  two  years  and  eight 
months  elapsed,  after  the  dissolution  of  the  injunction, 
to  the  death  of  Nathaniel  Doughty ;  and  that,  from  the 
death  of  Nathaniel  Doughty  up  to  the  time  of  bringing 
the  last  suit  at  law,  there  were  upwards  of  eighteen  months 
permitted  to  expire,  deducting  the  six  months  which,  by 
the  statute,  a  suit  against  the  executor  was  prohibited  from 
being  brought. 

The  object  of  the  bill  is  to  obt\in  an  injunction  to  pre- 
vent the  defendant  from  pleading  the  statute  of  limitations 
in  the  suit  against  her  at  law. 

Where  this  court  has,  by  the  solicitation  of  a  suitor  in- 
voking the  aid  of  this  court  for  his  relief,  interfered  with 
the  legal  rights  of  another,  and  impaired  his  remedy  at  law, 
it  would  seem  to  be  right,  and  the  duty  of  the  court,  to 
protect  the  party  whose  rights  had  been  thus  interfered 
with  against  any  undue  advantage  attempted  to  be  taken  by 
the  other  party,  at  whose  solicitation  the  power  of  this 
court  was  called  into  action.  It  would  be  unconscientous 
for  a  party  to  plead  the  statute  of  limitations  against  an 
adversary  who,  at  his  solicitation,  had  been  enjoined  from 
prosecuting  his  suit;  and  it  would  seem  to  be  the  appro- 
priate remedy,  that  the  same  instrument  which  he  had 
used  to  interrupt  the  legal  proceedings  of  another,  should 
be  interposed  as  a  shield  to  prevent  his  taking  an  undue, 
advantage  of  such  interruption.  One  acknowledged  prin- 
ciple, on  which  courts  of  equity  give  relief,  is  to  prevent  an 
advantage  gained  at  law  from  being  used  against  conscience. 
Bond  v.  Hopkins,  \  ScJift.  and  Lef.  413  ;  2  Story  s  Eq.  J. 
§  1521  and  notes;  Anonymous,  2  Cos.  in  Ch.  217; 
Pulteney  v.  Warren  C  Vcs.  73.  Nor  do  I  see  any  necessity 
of  this  court's  assuming  jurisdiction  of  the  whole  subject  of 
controversy,  and  withdrawing  the  suit  from  the  court  of 
law,  to  be  finally  settled  here.  There  is  no  necessity 

VOL.  IL  2  o 


350  CASES  IN  CHANCEKY. 

Doughty  v.  Doughty. 

of  doing  this  in  order  to  give  adequate  relief.  The  party 
obtains  all  the  relief  he  requires  if  this  court  enjoins  his 
adversary  from  interposing  the  statute  of  limitations  as  a 
plea  in  the  suit  at  law.  This  is  a  simple  mode  of  relieving 
the  party,  and  no  good  reason  has  been  suggested  why  the 
court  may  not  exercise  its  jurisdiction  in  this  way. 

But  although  there  is  no  difficulty  in  the  court's  giving 
this  relief  in  a  proper  case,  the  question  is,  whether  the 
complainant  is  in  a  position  to  call  upon  this  court  for  aid, 
and  whether  he  has  not,  by  his  own  laches,  forfeited  any 
claim  he  might  otherwise  have  had  to  the  interposition  of 
the  court  on  his  behalf. 

First.  The  injunction  granted  by  this  court  did  not  place 
the  original  defendant  in  the  suit  at  law,  nor  the  defendant 
in  the  present  suit  at  law,  in  a  position  to  take  ad- 
vantage of  the  complainant  by  pleading  the  statute  of  limi- 
tations. When  the  injunction  was  dissolved,  the  plaintiff 
in  the'  suit  at  law  was  left  free  to  prosecute  his  action. 
The  fact  of  their  having  been  an  injunction  could  not  in 
any  way  regulate  or  affect  the  defendant's  pleadings.  He 
could  no  more  plead  the  statute  of  limitations  then  than 
he  could  have  pleaded  it  if  there  had  been  no  interrup- 
tion ;  because  the  plea  must  have  been,  not  that  six  years 
had  expired  from  the  time  the  cause  of  action  arose  to 
the  time  of  filing  the  plea,  but  to  the  time  of  the  com- 
mencement of  the  suit.  The  injunction  of  this  court  was 
not  in  the  immediate  cause  of  the  position  in  which  the 
complainant  now  finds  himself,  and  from  which  he  asks 
to  be  relieved.  "We  must  look,  then,  for  the  immediate 
cause  of  the  complainant's  embarrassment. 

During  the  progress  of  the  suit  in  chancery,  the  com- 
plainant's attorney  in  the  suit  at  law  died.  After  the  dis- 
solution of  the  injunction,  no  summons  or  declaration  of 
action  could  be  found  on  the  records  of  the  court.  The 
loss  of  this  record,  and  not  the  injunction,  has  caused  the 
embarrassment.  It  will  not  do  to  say,  that  the  injunction 
was  the  remote  and  primary  cause  of  the  difficulty ;  that 


MAY  TERM,  1855.  351 

Doughty  v.  Doughty. 

if  tlie  injunction  had  not  interrupted  the  proceedings  the 
papers  would  not  have  been  lost.  The  loss  of  the  papers 
is  a  morfortune,  from  the  consequences  of  which  this  court 
cannot  relieve  the  complainant. 

But,  secondly.  The  laches  of  the  complainant  have 
been  great,  and  no  excuse  for  them  has  been  offered  which 
can  avail  the  party  in  a  court  of  equity.  Nathaniel  Dough- 
ty died  in  November,  1852,  two  years  and  eight  months 
after  the  injunction  was  dissolved.  During  this  period, 
the  complainant  took  no  steps  to  revive  his  old  suit  at 
law,  or  to  institute  a  new  one.  He  allowed  two  more 
years  to  pass  after  Nathaniel  Doughty's  death,  and  he 
then  commences  the  existing  suit,  in  aid  of  which  this 
court  is  asked  to  interpose.  Here,  then,  was  a  delay  of 
more  than  three  years.  The  only  excuse  for  it  which  is 
given  in  the  bill  is,  that  during  this  period,  the  complainant 
was  recovering  from  the  effects  of  his  loss  of  money  and  of 
time  expended  in  his  litigation  in  chancery.  Such  an  ex- 
cuse cannot  avail  the  complainant.  If  he  has  lost  any 
legal  rights,  the  loss  is  to  be  attributed  not  to  the  injunc- 
tion of  this  court,  but  to  the  complainant's  own  inex- 
cusable negligence  and  laches.  The  defendant  has  been 
greatly  prejudiced  by  this  delay.  The  suit  is  brought  upon 
a  running  account  of  long  standing,  and  one  which  re- 
quires the  information,  which  the  party  himself  only 
could  give,  to  explain.  He  is  dead.  The  cause  might  have 
been  decided  in  his  lifetime.  The  delay  of  the  complain- 
ant has  prevented  it.  His  own  delay  and  negligence  have 
caused  his  present  embarrassment. 

The  injunction  is  denied  with  costs. 


352  CASES  IN  CHANCERY. 


Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 


THE  MOKRIS  AND  ESSEX  RAH/ROAD  COMPANY  vs.  THE  MAYOB 
AND  COMMON  COUNCIL  OF  THE  CITY  or  NEWARK. 


The  Morris  and  Essex  Railroad  Company  have  no  right  to  occupy  or  use 
Broad  and  Centre  streets,  in  the  city  of  Newark,  in  the  manner  the  same 

•  are  now  appropriated  by  them,  without  the  consent  of  the  mayor  and  com- 
mon council  of  the  city  of  Newark. 

The  legislature  has  the  power  to  authorize  the  use  of  a  public  highway  for 
the  purpose  of  a  railroad,  in  such  a  manner  as  not  entirely  to  destroy  its 
use  in  the  ordinary  mode.  The  use  of  public  highways  belongs  to  the  pub- 
lic, but  they  have  not  been  dedicated  to  any  particular  mode  of  travel  or 
use.  It  i  s  perfectly  consistent  "with  the  purposes  for  which  they  were 
originally  designated  and  intended  that  the  public  authorities,  who  have 
the  control  of  them  as  public  highways,  should  adapt  them  in  their  use  to 
the  convenience  and  improvement  of  the  age. 

The  legislature  must  be  the  judges  as  to  the  benefit  to  the  public,  and  to  their 
authority  individuals  and  the  public  must  submit. 

The  authority  to  use  a  public  highway  for  the  purposes  of  a  railroad,  retain- 
ing the  use  of  such  highway  for  all  ordinary  purposes,  subject  only  to  the 
inconvenience  of  the  railroad,  is  not  such  taking  of  private  property  from 
the  owner  of  the  fee  of  the  adjacent  lands  as  is  contemplated  by  the  pro- 
vision of  the  constitution,  which  provides  that  individuals  or  private  cor- 
porations shall  not  be  authorized  to  take  private  property  for  public  use 
without  just  compensation  first  made  to  the  owners.  The  easement  of  the 
highway  is  in  the  public,  although  the  fee  is  technically  in  the  adjacent 
owner.  It  is  the  casement  only  which  is  appropriated,  and  no  right  or 
title  of  the  owner  interferred  with.  If  the  legislature  authorizes  the  com- 
pany to  take  the  highway,  and  appropriate  ifc  to  its  own  use,  by  destroying 
the  ordinary  and  legal  right  of  the  public  to  use  it  as  a  highway,  then  com- 
pensation must  be  provided;  because  when  the  rights  of  the  public  in  it 
ceases,  then  the  use  of  it  reverts  to  the  person  who  holds  the  fee  in  the 
land.  Then  the  legislature  authorizes  to  be  taken  something  which  belongs 
to  the  land  owner,  to  wit,  the  use  of  the  land. 

It  follows  further,  that  an  adjacent  land  owner  cannot  maintain  an  action 
at  law  for  consequential  damages,  unless  he  can  show  a  negligent  exercise 
by  the  company  of  their  legal  rights;  because  no  action  at  law  \uill  lie 
for  a  consequential  injury  necessarily  resulting  from  the  exercise  of  a 
legal  right  under  legislative  authority*  4  Com.  195;  10  Barb.  369;  18 
Barb.  222. 

The  complainants  were  authorized  to  construct  a  railroad  from  Morristown 
to  Newark.  That  was  the  object  of  their  incorporation ;  and  it  is  manifest, 
from  the  whole  act,  that  it  was  the  intention  of  the  legislature  to  confer 
all  the  powers  necessary  to  enable  the  corporators  to  carry  out  the  object 
for  which  they  were  incorporated.  But  it  does  not  fol^Dw  that  because  the 
legislature  intended  to  confer  upon  the  company  all  the  powers  necessary 
*See  Tinsman  v.  The  Bel.  Del.  Railroad  Co.,  2  Butcher. — REPORTER. 


MAY  TEEM,  1855.  353 

Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 

for  them  to  carry  out  the  object  for  which  they  were  incorporated,  that 
they  are  therefore  necessarily  clothed  with  all  powers  to  meet  that  neces- 
sity;  and  that  when  not  expressed,  such  powers  are  to  be  derived  by  impli- 
cation. In  a  limited  sense,  the  proposition  is  true,  when  the  power  sought 
to  be  implied  does  not  take  away  or  impair  the  legal  rights  of  individuals 
or  of  any  other  corporation. 

The  public  rights  in  the  highways  of  the  state  can  be  impaired  or  interfered 
with  by  nothing  short  of  the  authority  conferred  by  the  sovereign  power. 
That  authority  must  be  expressly  given;  or  if  conferred  by  implication,  it 
must  be  a  necessary  implication. 

Held,  that  the  right  is  not  given  by  this  charter  in  express  terms,  and  it  can- 
not be  implied,  from  any  of  its  provisions,  to  appropriate,  for  the  purpose 
of  their  railroad,  more  than  one  half  mile  of  the  principal  public  highway 
of  Newark  without  the  consent  of  the  appropriate  public  authorities  of  the 
city. 

That  the  acts  of  defendants,  upon  which  complainants  rely  as  establishing 
consent,  are  not  sufficient.  There  was  no  license  given  to  the  company, 
either  by  parol  or  in  writing ;  and  no  fraud  can  be  inferred  from  the  fact, 
that  the  defendants  did  not  interfere,  but  stood  by  in  silence,  while  the 
complainants  expended  their  money  in  the  construction  of  their  road  upon 
the  public  highways. 

There  is  no  legislative  sanction,  either  in  the  supplement  of  2d  March,  1836, 
or  in  the  further  supplement  of  22d  February,  1838,  to  the  company's  occu- 
pying any  public  highway,  without  first  obtaining  the  consent  of  the  proper 
legal  authorities.  They  will  not  warrant  such  a  construction. 


On  motion  to  dissolve  injunction. 

THE  CHANCELLOR.  The  Morris  and  Essex  Railroad 
Company  was  incorporated,  by  an  act  of  the  legislature  of 
the  state  of  New  Jersey,  on  the  29th  day  of  January,  1835. 
The  company  was  invested  with  all  the  rights  and  powers 
necessary  and  expedient  to  survey,  lay  out,  and  construct 
a  railroad,  or  lateral  roads,  from  one  or  more  suitable 
place  or  places  in  the  village  of  Morristown,  to  intersect 
one  or  more  place  or  places  in  the  railroad,  known  by  the 
name  of  the  New  Jersey  Railroad  and  Transportation 
Company,  at  Newark  or  at  Elizabethtown,  in  the  county 
of  Essex,  or  between  those  places,  not  exceeding  sixty-six 
feet  wide,  with  as  many  sets  of  tracks  and  rails  as  they 
might  deem  necessary.  During  the  years  1835,  1836,  and 
1837,  the  company  constructed  their  railroad  from  Mor- 
ristown, and  intersected  the  railroad  of  the  New  Jersey 
Railroad  and  Transportation  Company  at  Newark.  The 

2o* 


354  CASES  IN  CHANCERY. 

Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 

road  enters  Newark  in  the  northern  part  of  the  city,  and 
intersects  Broad  street  at  right  aijgles  nearly  ;  thence, 
passing  southerly  through  Broad  and  Center  streets,  it 
intersects  the  New  Jersey  railroad  at  the  foot  of  Center 
street,  and  at  a  distance  of  about  three  or  four  hundred 
feet  from  the  Passaic  river.  Broad  street  is  the  principal 
street  of  the  city  of  Newark.  ^The  railroad  occupies  this 
street  for  a  distance  of  little  over  a  quarter  of  a  mile  ;  the 
line  of  the  road  through  Center  street  is  less,  the  length 
of  the  road  through  both  streets  being  little  over  half  a 
mile.  The  legal  supervision  and  control  of  the  public 
highways  of  the  city  of  Newark  are  vested  in  the  mayor 
and  common  council  of  the  city  of  Newark,  and  they  are 
amenable  to  the  laws  for  the  maintenance  and  preserva- 
tion of  those  streets  for  the  public  uses  and  purposes  to 
which  they  were  originally  dedicated.  On  the  4th  of  Au- 
gust, 1854,  the  defendants  passed  a  preamble  and  resolu- 
tion, as  follows  :  "  Whereas  the  Morris  and  Essex  Railroad, 
for  a  considerable  period  of  time,  have  had  a  track  for 
their  use  lying  along  Broad  street,  Park  place,  and  Center 
street ;  that  said  track  is  a  great  detriment  to  the  conve- 
nience of  the  public,  and  is  a  source  of  danger  to  life  and 
property ;  .whereas  the  necessity  for  such  track  is  now  ob- 
viated by  the  construction  of  another  track  more  direct 
to  New  York,  therefore  resolved,  that  the  president,  di- 
rectors, and  officers  of  the  Morris  and  Essex  railroad  be 
directed,  as  soon  as  the  road  now  in  process  of  construc- 
tion shall  be  finished  and  fit  for  use,  forthwith  to  remove 
said  track, -and  to  repair  the  street  through  which  the 
same  passes,  under  the  direction  of  the  street  commis- 
sioner. In  answer  to  these  proceedings  on  the  part  of  the 
defendants,  the  complainants  returned  a  written  commu- 
nication, assuming  and  asserting  a  legal  right,  on  their  part, 
to  occupy  the  streets  with  their  railroad,  as  the  same  was 
then  constructed  and  used  by  them.  On  the  third  day  of 
November  last,  the  defendants  passed  a  resolution  as  fol- 
lows :  "  Resolved,  that  a  special  committee  be  appointed. 


MAY  TEEM,  1855.  355 

Morris  and  Essex  Railroad  v.  City  of  Newark. 

whose  duty  it  shall  be  to  cause  the  said  railroad  track  to 
be  taken  up  and  removed  with  all  possible  dispatch,  to 
the  end  that  proper  measures  may  be  taken  to  repair  and 
repave  the  said  streets  in  the  places  where  the  said  tracks 
now  are."  On  the  morning  after  the  passage  of  this  reso- 
lution, the  defendants,  by  their  agents,  commenced  taking 
up  and  removing  the  railroad  track  in  Broad  street.  The 
complainants  then  exhibited  in  this  court  their  bill  of 
complaint.  They  allege  that,  by  their  act  of  incorpora- 
tion, they  are  invested  with  the  legal  right  to  occupy 
Broad  and  Center  streets  in  the  manner  they  have  used 
and  occupied  the  same  ;  that  they  located  their  road 
through  those  streets,  and  filed  the  location  in  the  office 
of  the  secretary  of  state,  according  to  the  provisions  of 
their  charter  ;  that  it  would  have  been  difficult,  if  not  im- 
practicable, to  have  located  and  constructed  their  road  in 
the  city  of  Newark  to  a  junction  with  the  New  Jersey 
railroad,  according  to  the  meaning  of  their  act  of  incor- 
poration, without  limning  along  ope  or  more  of  the 
streets,  and  that  the  line  on  which  the  road  is  constructed 
creates  as  little  inconvenience  as  any  line  that  could  have 
been  adopted.  The  complainants  further  allege  in  their 
bill  of  complaint,  that  the  legislature  of  the  state  has,  by 
several  acts,  passed  in  reference  to  the  location  and  route 
of  this  road,  sanctioned  its  location  in  the  public  streets 
of  Newark ;  that  the  defendants  suffered  them  to  make 
their  location,  and  construct  their  road  without  objection, 
and  they  have  since,  by  several  official  acts,  acquiesced  in 
and  assented  to  the  right,  which  the  complainants  claim 
as  a  legal  one,  by  which  acts  the  complainants  were  in- 
volved in  expenditures  of  money  amounting  to  several 
thousands  of  dollars.  Upon  this  bill  an  injunction  was 
granted,  not  hastily,  but  upon  due  consideration  of  all  the 
facts  stated  by  the  complainants.  I  still  think  it  was  pro- 
perly granted.  The  road  had  been  in  use  for  nearly 
pixtoen  years.  There  was  no  pressing  necessity  for  its 
immediate  or  hasty  removal  The  defendants,  after  an 


356  CASES  IN  CHANCEKY. 

Morris  and  Essex  Railroad  u.  City  of  Newark. 

opportunity  of  answering,  and  presenting  their  case  to 
the  court,  have  not  pretended  that  there  was  any  exigency 
which  required  the  immediate  removal  of  the  railroad, 
without  aifording  the  complainants  an  apportunity  of  as- 
serting and  trying  their  rights  before  the  legal  tribunals  of 
the  state.  It  would  have  been  a  reproach  upon  the  juris- 
prudence of  New  Jersey  if  there  had  been  no  way  pro- 
vided by  which  the  complainants'  property  could  have 
been  preserved  from  destruction  until  the  opportunity 
was  afforded  them  of  a  hearing. 

The  public  excitement  which  existed  in  the  city  of 
Newark  did  not  make  this  court  falter  one  moment  in 
discharge  of  its  duty.  The  injunction  was  issued,  and 
has  been  respected,  and  I  have  no  cause  to  regret  that  the 
complainants  found  in  this  court  a  prompt  and  efficient 
protection  to  their  property,  until  the  opportunity  was 
afforded  them  of  a  judicial  determination  as  to  their 
rights. 

The  defendants  have  filed  their  answer,  with  several 
affidavits  annexed.  Both  parties  have  presented  their 
case,  and  are  now  entitled  to  the  decision  of  this  court  as 
to  their  rights. 

The  first  and  most  important  question  for  consideration 
is,  whether,  by  their  act  of  incorporation,  any  legal  au- 
thority is  given  to  the  complainants  to  locate  and  con- 
struct their  road  upon  a  public  street  of  the  city  of  New- 
ark ?  In  giving  the  company  the  privilege  of  construct- 
ing a  railroad  from  Morristown,  to  intersect  with  the  New 
Jersey  railroad  in  the  county  of  Essex,  at  Newark  or  at 
Elizabethtown,  or  between  those  places,  it  was  necessary 
that  the  legislature  should  confer  upon  the  company  the 
legal  power  and  authority  to  possess  the  lands  which  were 
necessary  to  be  occupied  in  constructing  the  road.  There 
were  two  kinds  of  property  necessary  for  the  purpose — 
private  property,  and  property  in  which  the  public  had  an 
interest  distinct  from  any  private  or  reversionary  interest 
which  might  belong  to  any  individaal  in  the  same,  such 


OCTOBER  TERM,  1855.  357 

Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 

as  public  highways.  In  this  charter,  there  is  distinct  and 
appropriate  legislation  as  to  both  these  kinds  of  property. 
The  company  is  exjrressl/y  authorized  to  occupy  both.  But 
the  manner  of  that  occupation,  and  the  mode  of  acquir- 
ing it,  and  the  title  or  right  of  property  which  the  com- 
pany acquires,  are  essentially  different.  As  to  private  pro- 
perty, the  company  is  to  purchase  the  same  of  the  owner ; 
or,  <f  an  agreement  cannot  be  made  between  them  as  to 
pri^e,  then  the  land  is  to  be  acquired  by  a  mode  of  assess- 
m<  nt  particularly  designated ;  and  upon  the  payment  of 
sn«h  assessment,  the  said  company  is  deemed  to  be  seized 
and  possessed  in  fee  simple  of  all  such  lands  and  real  es- 
tate so  appraised.  As  to  public  highways,  which  it  wras 
absolutely  necessary  the  company  should  occupy  in  the 
construction  of  their  railroad,  the  legislature  made  no 
provision  for  the  company's  acquiring  any  title  in  them. 
The  legislature  had  the  power  to  authorize  the  company 
to  occupy  the  public  highways,  either  longitudinally  or 
otherwise,  either  with  or  without  compensation.  The  use 
of  the  public  highways  belongs  to  the  public,  although 
technically  the  fee  to  the  land  remains  in  the  original 
owner  and  his  assigns.  They  have  not  been  dedicated  to 
any  particular  mode  of  travel  or  use.  They  are  intended, 
and  are  devoted  to  public  convenience,  and  to  the  profit 
and  pleasure  of  the  public  as  thoroughfares.  As  the 
means  of  facilitating  the  intercourse,  in  matters  of  busi- 
ness or  pleasure,  between  one  city  or  town  and  another, 
or  between  one  man's  dwelling  house  and  farm  and 
another's ;  it  is  perfectly  consistent  with  the  purposes  for 
which  they  were  originally  designated  and  intended,  that 
the  public  authorities,  who  have  the  control  of  them  as 
public  highways,  should  adapt  them,  in  their  use,  to  the 
conveniences  and  improvements  of  the  age. 

For  the  legislature  to  authorize  the  use  of  a  public 
highway  for  the  purpose  of  a  railroad,  in  such  a  manner 
as  not  entirely  to  destroy  its  use  in  the  ordinary  mode, 
is  not  inconsistent  with  the  purposes  for  which  the  public 


358  CASES  IN  CHANCEKY. 

Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 

highway  was  originally  intended.  It  may  render  the  or- 
dinary mode  of  travel  less  convenient,  or  perhaps  danger- 
ous ;  and  yet  the  benefit  to  the  public,  by  the  use  of  it  as 
a  highway  upon  an  iron  superstructure,  may  very  greatly 
outweigh  and  overbalance  such  danger  and  inconve- 
nience. The  legislature  must  be  the  judges  as  to  the  be- 
nefit to  the  public,  and  to  their  authority  individuals  and 
the  public  must  submit.  If  these  views  are  correct,  it  fol- 
lows that  where  a  public  highway  is  used  by  a  railroad 
company  in  common  with  the  public  under  the  sanction 
of  legislative  authority,  it  may  enjoy  such  use  without 
making  compensation  to  the  owners  in  fee  of  the  adja- 
cent lands,  and  that  the  legislature  may  authorize  such 
use  without  providing  compensation,  even  under  the  ex- 
isting constitution  of  the  state,  which  provides  that  indi- 
viduals or  private  corporations  shall  not  be  authorized  to 
take  private  property  for  public  use  without  just  compen- 
ygation  first  made  to  the  owners.  The  authority  to  use  a 
public  highway  for  the  purpose  of  a  railroad,  retaining 
the  use  of  such  highway  for  all  ordinary  purposes,  sub- 
ject only  to  the  inconvenience  of  the  railroad,  is  not  such 
taking  of  private  property  from  the  owner  of  the  fee  of 
the  adjacent  lands  as  is  contemplated  by  the  provision  of 
the  constitution.  The  easement  of  the  highway  is  in  the 
public,  although  the  fee  is  technically  in  the  adjacent 
owner.  It  is  the  easement  only  which  is  appropriated, 
and  no  right  or  title  of  the  owner  interfered  with. 

If  the  legislature  authorizes  the  company  to  take  the 
highway,  and  appropriate  it  to  its  own  use,  by  destroying 
the  ordinary  and  legal  right  of  the  public  to  use  it  as  a 
highway,  then  compensation  must  be  provided ;  because 
when  the  rights  of  the  public  in  it  ceases,  then  the  use 
of  it  reverts  to  the  person  who  holds  the  fee  in  the  land. 
Then  the  legislature  authorizes  to  be  taken  something 
which  belongs  to  the  land  owner,  to  wit,  the  use  of  the 
land.  But  while  it  is  preserved  as  a  common  public  high- 
way, the  use  of  it  does  not  belong  to  the  owner  of  th<s 


MAY   TERM,  1855.  359 

Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 

fee  any  more  than  it  does  to  any  other  individual  of  the 
community.  The  legislature,  therefore,  does  not,  by  per- 
mitting the  company  to  use  the  public  highway  in  common 
with  the  public,  take  away  from  the  land  owner  anything 
that  belongs  to  him.  It  is  not  a  misappropriation  of 
the  way.  It  is  used,  in  addition  to  the  ordinary  mode, 
in  an  improved  mode  for  the  people  to  pass  and  repass. 
These  views  correspond  with  those  of  the  Court  of  Ap- 
peals in  the  state  of  New  York,  in  the  case  of  Williams  v. 
The  New  York  Central  Railroad  Company  (18  Barb.  Sup. 
C.  R.  222)  respecting  the  construction  of  a  similar  provision 
in  the  constitution  of  that  state.  It  follows  further,  ad- 
mitting the  correctness  of  the  views  expressed,  that  the 
adjacent  land  ow'ner  cannot  maintain  an  action  at  law  for 
consequential  damages,  unless  he  can  show  a  negligent 
exercise  by  the  company  of  their  legal  rights  ;  because 
no  action  at  law  will  lie  for  a  consequential  injury  neces- 
sarily resulting  from  the  exercise  of  a  legal  right  under 
legislative  authority.  This  principle  was  broadly  affirmed 
in  the  case  of  Radoliffds  Kcecutors  v.  The  Mayor,  <#6'.,  of 
Brookl/yn  (4  Com.  Rep.  195),  by  the  Court  of  Appeals  of 
the  state  of  New  York.  The  Supreme  Court  of  that  state, 
in  the  case  of  Chapman  v.  The  Albany  and  Schenectady 
Railroad  Company  (10  Barb.  R.  369)  held,  that  "  a  rail- 
road corporation,  constructing  its  road  through  one  of  the 
streets  of  a  city,  in  pursuance  of  authority  granted  by  the 
legislature,  and  with  the  consent  of  the  common  council 
of  the  city,  is  not  liable  for  consequential  damages  sustained 
by  persons  owing  land  adjacent  to  the  street,  provided 
the  authority  given  to  the  company  is  exercised  with  pro- 
per care  and  skill."  The  same  principle  was  reaffirmed  in 
the  late  ca~e  of  William*  v.  The  Central  Railroad  Company 
of  New  York,  before  referred  to,  and  is  further  maintained 
and  8i*pix>rted  in  the  numerous  authorities  referred  to  by 
the  counsel  and  court  in  the  report  of  the  last  named  ca-^e. 
I  have  examined  more  fully  this  branch  of  the  case,  because 
it  was  very  fully  argued  by  counsel  ;  and  for  the  purpose 


360  CASES  IN  CHANCERY. 

Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 

of  showing  that  no  fair  inference  can  be  drawn  against 
the  right,  set  up  by  the  complainants,  from  the  fact  that 
their  charter  provides  no  mode  of  compensation  to  land 
owners  adjacent  to  public  highways.  But  the  charter  of 
the  company  does  expressly  provide  for  the  mode  in. 
which  public  highways,  are  to  be  used  by  them  in  the  con- 
struction of  their  road,  and  imposes  a  duty  upon  the  com- 
pany in  appropriating  them  to  such  use.  Immediately 
after  providing  the  mode  by  which  lands  of  individuals 
may  be  acquired  and  taken,  it  is  enacted,  "  that  it  shall  be 
the  duty  of  the  company  to  construct  and  keep  in  repair 
good  and  sufficient  bridges  or  passages  over  or  under  the 
said  railroad  or  roads,  where  any  public  or  other  road  shall 
cross  the  same,  so  that  the  passage  of  carriages,  horses, 
and  cattle  on  the  said  road  shall  not  be  impeded  thereby." 
There  is  no  other  provision  in  the  charter  respecting  the 
land  which  the  company  is  to  take  and  occupy  for  the 
purposes  of  their  road.  It  will  thus  be  seen  that  ample 
provision  is  made  for  the  company's  taking  private  pro- 
perty, and  in  reference  to  their  crossing  public  highways. 
Whence  do  they  deprive  their  right  to  occupy  the  public 
highways  longitudinally,  and  thus  appropriate  themtotheL* 
own  use  ?  Their  authority  must  be  found,  if  anywhere, 
in  their  act  of  incorporation.  It  is  not  expressed-  in  thj 
act ;  and  if  it  can  be  derived  from  it  all,  it  must  be  b  / 
implication.  Is  any  such  right  to  be  implied  from  th) 
charter,  which  clothes  the  complainants  with  all  the  legal 
power  they  possess  ?  The  complainants  are  authorized  t ) 
construct  a  railroad  from  Morristown  to  Newark.  That 
was  the  object  of  their  incorporation;  and  it  is  manifest, 
from  the  whole  act,  that  it  was  the  intention  of  the  legis- 
lature to  confer  all  the  powers  necessary  to  enable  the 
corporators  to  cany  out  the  object  for  which  they  were 
incorporated.  I  do  not  think  that,  because  the  legislature 
intended  to  confer  upon  the  company  all  the  powers  neces- 
sary for  them  to  carry  out  the  object  for  which  they 
were  incorporated,  they  are  therefore  necessarily  clothed 


MAT  TEEM,  1855.  361 

Morris  and  Essex  Railroad  Co.  r.  City  of  Newark. 

with  all  powers  to  meet  that  necessity,  and  that  where  not 
expressed^  such  powers  are  to  be  derived  by  implication. 
In  a  limited  sense,  the  proposition  is  true.  It  is  true,  as  a 
general  proposition,  when  the  power  sought  to  be  implied 
does  not  take  away  or  impair  the  legal  rights  of  individ- 
uals or  of  any  other  corporation.  Suppose  the  general 
power  had  been  conferred  to  construct  a  railroad  from 
Morristown  to  Newark,  without  anything  being  said  as  to 
the  occupation  of  land,  or  the  mode  of  acquiring  it,  the 
power  to  /told  land  for  the  purpose  would  llow  as  a  neces- 
sary implication  from  the  character  of  the  franchise ;  but 
the  power  to  take  the  land  without  the  consent  of  the  laud 
owner  would  not  be  implied,  even  irrespective  of  the  con- 
sideration of  any  constitutional  difficulties  that  might  be 
interposed.  In  the  case  of  The  Inhabitants  of  Springfield 
v.  The  Connecticut  River  Railroad  Company  (±  dishing*  s 
Rep.  63),  to  be  found  in  1  American  Railway  Cases  572, 
the  Supreme  Court  of  Massachusetts  held,  that  "  an  act  of 
the  legislature,  which  authorizes  the  construction  of  a  rail- 
road between  certain  termini,  without  prescribing  its  pre- 
cise course  and  direction,  does  not  prima  facie  confer 
power  to  lay  out  the  road  over  and  along  an  existing 
public  highway ;  but  is  competent  for  the  legislature  to 
grant  such  authority,  either  by  express  words  or  by  neces- 
sary implication :  and  such  implication  may  result  either 
from  the  language  of  the  act,  or  from  its  being  shown  by 
an  application  of  the  act  to  the  subject  matter,  that  the 
railroad  cannot,  by  reasonable  intcndment,  be  laid  in  any 
other  line."  I  am  unwilling  to  adopt  this  principle  as 
broadly  as  it  is  laid  down.  I  yield  an  assent  to  the  reason- 
ing of  the  court,  much  more  readily  than  to  the  conclu- 
sions deduced  from  it.  The  same  court  say,  "  Had  it  been 
intended  that  r.filroad  companies,  under  a  general  grant, 
should  have  power  to  lay  a  railroad  over  a  public  highway 
longitudinally,  which  ordinarily  is  not  necessary,  wo  think  ' 
that  would  have  been  done  in  express  terms,  accompanied 
with  full  legislative  provisions  for  maintaining  such  bar- 
VOL.  n.  2  ii 


362  CASES  IN  CHANCERY. 

Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 

riers  and  modes  of  separation  as  would  tend  to  make  the 
use  of  the  same  Toad,  for  both  modes  of  travel,  consistent 
with  the  safety  of  travellers  on  both.  The  absence  of  any 
such  provision  affords  a  strong  inference  that,  under 
general  terms,  it  was  not  intended  that  such  a  power 
should  be  given."  In  this  charter,  the  legislature  have 
expressly  provided  for  the  use  of  public  highways,  where 
the  same  are  crossed  by  the  railroad,  and  have  protected  the 
public  in  their  ordinary  use  and  enjoyment  of  the  same. 
And  yet  it  is  contended,  that  from  this  same  act,  an  im- 
plied power  is  derived  to  use  the  public  highways  in  a 
manner  which  may  be  totally  destructive  of  their  ordi- 
nary public  use.  In  other  words,  the  legislature  have 
been  guilty  of  the  absurdity  of  express  legislation  to  pro- 
tect the  public  from  a  lesser  evil,  and  while  so  doing  have 
left  room  for  the  implication  of  a  power  to  inflict  the  same 
evil,  but  in  a  greater  magnitude. 

If  nothing  had  been  said  in  the  act  of  incorporation 
as  to  crossing  of  public  highways,  that  power  would  have 
been  derived  from  implication,  because  it  is  impossible  to 
construct  a  railroad  from  Morristown  to  Newark  without 
such  crossing.  The  same  necessity  for  occupying  public 
highways  longitudinally  does  not  exist,  and  must,  from  the 
nature  of  the  case,  have  so  appeared  to  the  legislature. 
And  yet  they  are  not  willing  to  leave  the  power  of 
crossing  public  highways  to  mere  implication.  There 
was  less  necessity  for  legislative  action  with  reference  to 
crossing  public  highways ;  and  yet  upon  this  they  have 
legislated.  It  shows  that  the  whole  subject  was  in  the 
mind  of  the  legislature ;  and  for  that  reason,  I  think,  we 
should  not  too  readily  draw  any  pov~er  regarding  it  by  mere 
implication. 

The  legislature  of  the  state  has  conferred  upon  certain 
corporate  bodies  the  control  and  supervision  of  the  public 
"highways.  Those  bodies  are  responsible  for  the  proper 
maintenance  and  repair  of  these  ways.  They  may  be 
arraigned  before  the  criminal  tribunals  of  the  land  for  a 


MAY  TEKtt,  1855.  3G3 

Morris  and  Essex  Railroad  Co.  r.  City  of  Newark. 

neglect  of  duty  in  the  execution  of  the  trust  committed 
to  them.  These  provisions  are  made  for  the  benefit  of  the 
public,  and  for  its  protection.  The  public  have  rights  in 
the  public  highways  of  the  state,  which  can  be  impaired 
or  interfered  with  by  nothing  short  of  authority  conferred 
by  the  sovereign  power  of  the  state  itself.  That  authority 
must  be  expressly  given ;  or  if  conferred  by  implication,  it 
must  be  a  necessary  implication,  such  as  will  necessarily 
and  naturally  flow  out  of  the  law  from  whence  it  is  de- 
rived, not  a  necessary  implication  to  be  whittled  down 
into  a  reasonable  intendment,  and  then  to  become  a  mere 
matter  of  expediency,  and  then  to  be  resolved  into  a  mere 
question  of  dollars  and  cents. 

The  right  is  not  given  by  this  charter  in  express  terms, 
and  I  do  not  think  it  can  be  implied  from  any  of  its  pro- 
visions, which  will  authorize  this  company  to  appropriate 
for  the  purposes  of  their  railroad  more  than  one  half  mile 
of  the  principal  public  highways  of  Newark,  without  the 
consent  of  the  appropriate  public  authorities  of  the  city. 
I  do  not  think  that  the  company  can  occupy  these  streets 
without  such  consent,  even  upon  the  principle  of  con- 
struction as  to  legislative  grants,  as  laid  down  by  the 
court  in  the  case  of  The  Inhabitants  of  Springfield  v.  The 
Connecticut  River  Railroad  Company.  In  that  case,  the 
court  referred  it  to  three  commissioners  to  consider  and 
report  upon  an  examination  and  survey  of  the  country 
between  the  termini  of  the  road,  whether  it  was,  by  fair  and 
reasonable  intendment,  necessary  to  lay  out  and  construct 
the  road  upon  and  along  Front  street,  in  the  town  of 
Springfield,  or  either  of  the  public  highways  in  Cabot ville, 
or  not.  The  only  object  of  such  a  reference  is  to  give  in- 
formation to  the  court.  No  inquiry  need  be  instituted  in 
this  case  to  ascertain  the  fact,  whether  it  was,  by  fair  and 
reasonable  intendment,  necessary  to  occupy  Broad  and 
Center  streets,  in  the  city  of  Newark,  in  order  to  enable  the 
complainants  to  intersect  with  their  railroad  the  railroad  of 
the  New  Jersey  Railroad  and  Transportation  Company  at 


364:  CASES  IN  CHANCERY. 

Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 

.Newark,  or  at  Elizabethtown,  in  the  county  of  Essex,  or 
between  those  places.  Any  one  acquainted  with  the  gene- 
ral face  of  the  country  knows  that  it  is  practicable  to  make 
such  intersection  without  occupying  longitudinally  any  of 
the  public  streets  of  Newark. 

Being  of  opinion  that  the  complainants  have  no  right,  by 
law,  to  occupy  Broad  and  Center  streets  for  their  road,  it  is 
unnecessary  for  me  to  consider  another  question,  argued  by 
counsel  and  made  by  the  pleadings,  whether  the  company 
did  make  and  file  the  location  of  this  part  of  their  route  in 
conformity  to  their  charter,  and  the  eifect  upon  their  rights 
on  account  of  a  neglect  to  do  so. 

The  next  important  inquiry  is,  whether  the  defendants 
gave  their  consent  for  the  use  of  these  streets  by  the  com- 
plainants, and  as  to  the  extent  and  effect  of  such  consent,  if 
given. 

In  the  statement  of  their  case  by  their  bill,  the  com- 
plainants do  not  allege  that  they  ever  asked  the  consent 
of  the  defendants  for  the  use  and  occupation  of  their 
streets  ;  nor  is  it  alleged  or  insisted  that  any  such  consent 
was  proffered  or  given  in  express  terms.  It  is  admitted 
that  no  express  consent  was  given.  But  the  complainants 
allege  and  insist  that  such  consent  is  to  be  implied  from 
various  facts  and  considerations,  which  are  specifically  set 
forth  in  the  bill.  We  will  examine  them  in  the  order  in 
which  they  are  stated. 

First,  it  is  alleged  that,  at  the  time  of  determining  upon, 
and  locating  the  road,  and  of  constructing  the  same  in 
Broad  and  Center  streets,  no  objection  was  made  to  the 
same  on  the  part  of  the  public  authorities  of  the  city  of 
Newark ;  and  that  having  stood  by  and  seen  the  complain- 
ants expend  their  money,  and  making  no  objection,  the 
defendants  are  estopped  from  denying  the  complainants' 
right  to  the  easement  which  they  claim. 

In  the  case  of  Rerick  v.  Kern  (14  Serg.  (&  R.  267,  262,) 
it  was  held,  "that  an  executed  license,  the  execution  of 
which  has  involved  the  expenditure  of  money  or  labor, 


MAY  TEEM,    1855. 365 

Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 

is  regarded,  in  equity,  as  an  executed  agreement  for  valu- 
able consideration,  and  as  such  will  be  enforced,  even  when 
merely  verbal,  and  relating  to  the  use  or  occupation  of 
real  estate."  "  So,  if  a  party  having  a  title  to  an  estate 
should  stand  by,  and  allow  an  innocent  purchaser  to  ex- 
pend money  upon  the  estate,  without  giving  him  notice, 
he  would  not  be  permitted  by  a  court  of  equity  to  assert 
that  title  against  such  purchaser,  at  least  not  without  fully 
indemnifying  him  for  all  his  expenditures."  1  Story's 
£q.  J..  §  385. 

The  complainants  are  not  entitled  to  any  protection  in 
a  court  of  equity  by  the  application  of  these  principles  to 
their  case.  There  was  no  license  given,  either  by  parol  or 
in  writing,  nor  can  any  fraud  be  inferred  from  the  fact, 
that  the  defendants  did  not  interfere,  but  stood  by  in 
silence  while  the  complainants  expended  their  money  in 
the  construction  of  their  road  upon  the  public  highways. 
The  same  principal  of  law  is  applicable  to  the  complain- 
ants, in  their  encroachment  upon  and  use  of  the  high- 
ways as  to  individuals.  An  individual  erects  a  portico,  or 
court  yard  fence,  or  awning  posts,  upon  the  street,  or  en- 
croaches upon  it  with  his  building.  He  cannot  set  up  a 
legal  right  to  continue  them  there  permanently,  on  the 
plea  that  the  public  authorities  did  not  interfere  with  their 
erection.  He  placed  them  there  with  full  knowledge  of 
his  rights,  subject  to  the  paramount  right  of  the  public. 
To  ascertain  how  far  the  complainants  can  set  up  the 
silence  or  acquiescence  of  the  defendants  as  a  construc- 
tive fraud,  so  as  to  entitle  them  to  the  principle,  as  stated 
by  Mr.  Justice  Story,  we  must  look  at  the  circumstances 
which  induced  such  silence  and  acquiescence.  The  de- 
fendants admit  that  they  did  not  remonstrate,  and  give  the 
reasons  why  they  did  not.  The  city  of  Newark  had  then 
a  small  population,  in  comparison  with  its  present  num- 
ber. The  wants  of  the  city  for  its  public  thoroughfares 
have  since  then  greatly  increased  ;  large  expenditures 
have  been  required  in  paving  and  grading  the  streets  to 

VOL.  n.  2  n* 


366  CASES  IN  CHANCERY. 

Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 

meet  the  growing  necessities  of  tlie  public ;  sewers  are 
demanded  and  other  conveniences,  to  which  streets  in  a 
city  are  properly  and  legally  appropriated.  The  complain- 
ants occupied  the  streets  subject  to  all  these  contingencies. 
When  this  road  was  originally  constructed,  it  was  of  no 
serious  detriment  to  the  public.  The  fact,  that  the  public 
authorities  did  not  interfere  while  the  inconvenience  was 
tolerable,  ought  not  to  be  construed  into  a  fraud,  on  their 
part,  to  deprive  them  of  their  rights.  The  indulgence 
which  they  have  shown  the  complainants  ought  not,  by  a 
court  of  equity,  to  be  construed  into  a  wrong.  It  is  shown 
that  the  defendants  have  submitted  to  the  inconveniences 
occasioned  by  the  railroad,  until  the  complainants  have 
provided  themselves  with  another  intersection  of  the  New 
Jersey  railroad  in  the  city  of  Newark,  and  are  thus  in  the 
enjoyment  of  all  the  privileges  the  original  charter  was 
designed  to  confer.  Without  the  road  through  the  pub- 
lic streets  of  Newark,  the  complainants  are  in  the  enjoy- 
ment of  a  railroad  from  Morristown  intersecting  the  road 
of  the  New  Jersey  Railroad  and  Transportation  Company 
in  the  city  of  Newark.  In  addition  to  these  considera- 
tions, the  complainants  themselves  show  that  the  road 
through  these  streets  was  not  designed,  and  has  never 
been  used  as  the  main  line  of  their  railroad,  but  only  as 
a  temporary  track  or  spur,  to  their  main  road.  They  have 
never  used  it  with  locomotive  power,  nor  have  they  ever 
asserted  their  right  to  do  so  ;  and  they  admit  it  is  not  now 
used  in  any  way  for  the  conveyance  or  transportation  of 
passengers. 

But  the  complainants  set  up  other  acts  of  the  defend- 
ants as  evidences  of  an  acquiescence,  on  their  part,  to  the 
:  right  now  claimed.  They  say,  in  their  bill,  that  they  have 
.always  conformed  to  the  requirements  of  the  common 
•council  of  the  city  of  Newark,  or  of  their  agents,  in  re- 
spect to  the  manner  of  keeping  said  track ;  that  they  have 
been  required  from  time  to  time,  to  pave  between  the 
.rails,  .and  for  a  space  on  each  side  outside  of  said  rails  ; 


OCTOBER  TERM,  1855.  3G7 

Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 

that  when  the  streets  through  which  said  track  runs  were 
lately  graded  and  paved,  they  were  assessed  large  sums  of 
money  towards  paving,  and  that  such  assessments  and 
payments  made  by  them  amount  to  several  thousand  dol- 
lars. 

]^ow  certainly  these  facts,  so  far  from  showing  an  ac- 
quiescence on  the  part  of  the  defendants  in  the  legal  right 
of  the  complainants,  as  now  asserted,  amount  to  an  asser- 
tion, on  the  part  of  the  defendants,  of  their  continued 
control  of  the  streets,  and  to  an  admission,  by  the  com- 
plainants, that  they  occupied  them  as  a  matter  of  indul- 
gence, and  subject  to  the  control,  will,  and  pleasure  of  the 
defendants.  The  defendants  asserted  their  control  over 
the  streets,  and  the  complainants  submitted  to  their  au- 
thority. It  is  true  the  complainants  lost  no  legal  rights  by 
their  submission  to  the  city  authorities,  and  it  is  equally 
true  that  they  acquired  none,  either  at  law  or  in  equity. 

The  complainants  further  insist,  in  the  maintenance  of 
the  legal  right  asserted  by  them,  that  they  have  legisla- 
tive sanction  for  the  occupation  of  these  streets. 

On  the  2d  day  of  March,  1836,  the  legislature,  by  a 
supplement  to  the  original  act  of  incorporation,  enacted 
that  the  said  company  be  and  were  thereby  authorized 
and  empowered  to  vary  the  line  of  their  railroad,  as  at 
first  surveyed,  and  recorded  in  the  office  of  the  secretary 
of  state,  at  such  places  and  points  as,  in  the  opinion  of 
their  engineer,  might  best  promote  the  public  conveni- 
ence and  the  interest  of  the  stockholders.  And  after- 
wards, on  the  22d  day  of  February,  1838,  the  legislature 
passed  a  further  supplement  to  their  original  act  of  incor- 
poration, and  thereby  enacted  that  the  said  company 
should  have  power  to  make  such  deviations  from  the  line 
of  their  road  as,  from  time  to  time,  the  directors  thereof 
might  deem  expedient  and  proper.  And  after  making 
provision  for  the  payment  of  damages  to  land  owners, 
the  act  further  declares,  that  with  that  restriction  and 
limitation,  any  deviations  and  changes  theretofore  made, 


3GS  CASES  IN  CHANCERY. 

Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 

and  coining  within  the  principle  of  the  said  act,  should 
be  deemed  as  valid  as  though  the  same  had  been  laid 
down  and  marked  in  the  original  return  and  survey  of 
said  road.  By  a  proviso  in  the  last  supplement,  it  is  de- 
clared that  no  such  deviation,  or  lateral  road,  as  is  autho- 
rized by  that  supplement,  should  be  made  in  the  city  of 
Newark  without  the  consent  of  the  common  council  of 
the  city. 

I  can  find  no  legislative  sanction,  in  either  of  these  acts, 
to  the  company's  occupying  any  public  highway,  without 
first  obtaining  the  consent  of  the  proper  legal  authorities 
having  the  control  of  such  highway.  The  act  of  1836 
was  passed  before  the  road  was  constructed.  It  authorizes 
the  company  to  vary  the  line  of  their  road,  as  first  sur- 
veyed and  recorded  in  the  office  of  the  secretary  of  state. 
It  neither  established  the  legality  of  the  survey,  nor  did 
it  authorize  the  company,  in  varying  it,  to  take  or  use 
property  which  the  original  act  of  incorporation  did  not 
authorize  them  to  take. 

The  section  of  the  act  of  1838,  referred  to  by  the  bill, 
and  relied  upon  by  counsel,  merely  authorizes  the  com- 
pany to  deviate  from  the  line  of  their  survey,  reserving 
the  right  to  individuals  to  recover  damages  for  all  injuries 
sustained  by  such  deviation.  With  the  same  restriction 
and  limitation,  it  confirms  any  deviations  theretofore 
made  from  the  original  line  of  survey  and  location.  It  ex- 
pressly prohibits  any  such  deviation  in  the  city  of  New- 
ark, without  the  consent  of  the  common  council  of  the 
city.  The  mere  circumstance  that  the  legislature  recog- 
nised the  fact,  that  the  road  had  been  located,  and  that 
that  location  had  been  filed  in  the  office  of  the  secretary 
<5f  state,  as  the  act  of  incorporation  provides,  did  not 
legalize  that  location,  or  give  the  company  any  additional 
power  or  rights  than  were  conferred  by  their  original 
charter.  This  was  not  in  contemplation  at  the  time  the 
several  supplements  were  passed.  The  reason  of  the  stat- 
ute was  not  because  the  company  had  taken  or  used  pub- 


MAY  TERM,  1855.  369 

Morris  and  Essex  Railroad  Co.  v.  City  of  Newark. 

lie  highways,  or  any  other  land,  which  they  might  not 
have  taken  under  their  original  powers.  "  The  reason  of 
the  statute;  that  is  the  motives  wliich  led  to  the  making 
of  it,  the  object  in  contemplation  at  the  time  the  act  was 
passed,  is  a  criterion  by  which  to  ascertain  the  true  mean- 
ing of  the  act.  Attention  should  be  paid  to  the  circum- 
stances, whenever  there  is  a  question  either  of  explaining 
an  obscure,  ambiguous,  indeterminate  passage  in  an  act 
of  the  legislature,  or  of  applying  it  to  a  particular  case." 
/Smith's  Com.  §  491,  quoting  Puffendorf,  who  says :  "  But 
that  which  helps  us  most  in  the  discovery  of  the  time 
meaning  of  the  law,  is  the  reason  of  it,  or  the  cause 
which  moved  the  legislature  to  enact  it."  The  reason  for 
the  passage  of  the  several  acts  referred  to  was  not  because 
the  company  had  exceeded  their  power  in  the  appropria- 
tion of  public  highways  ;  nor  was  it  the  object  of  the  act, 
or  the  intent  of  the  law  makers,  to  sanction  any  such 
usurpation  of  power.  The  reason  of  the  act  and  the  in- 
tention of  the.legislature  are  botli  clear ;  there  is  no  doubt 
or  obscurity  as  to  the  objects  and  purposes  of  its  applica- 
tion. To  construe  these  laws  into  a  legislative  sanction  of 
the  appropriation  by  the  company  of  public  highways,  is 
a  perversion  in  the  application  of  the  acts  to  purposes  not 
intended.  The  assumption,  that  it  was  an  object  of  these 
acts  to  sanction  the  construction  of  the  road  on  the  pub- 
lic streets  of  Newark,  is  an  admission  that  the  streets 
were  illegally  used  by  the  company  for  that  purpose,  and 
is  inconsistent  witli  the  pretension,  now  assumed,  of  legal 
right  and  authority  under  their  original  act  of  incorpora- 
tion. 

The  Morris  and  Essex  Railroad  Company  have  no  right 
to  occupy  or  use  Broad  and  Center  streets,  in  the  city  of 
Newark,  in  the  manner  the  same  are  now  appropriated 
by  them,  without  the  consent  of  "  the  mayor  and  common 
council  of  the  city  of  Newark."  The  acts  of  the  defend- 
ants, upon  which  the  complainants  rely  as  establishing 
such  consent,  arc  not  sufficient  to  draw  from  them  any 


370  CASES  IN  CHANCERY. 

Grandin  v.  Reading. 

such  inference.  The  legislative  enactment,  upon  which 
the  complainants  rely  as  establishing  or  confirming  the 
right  of  the  company  to  occupy  the  streets  in*  question, 
will  not  warrant  such  a  construction.  The  defendants  are 
therefore  entitled  to  have  the  injunction  dissolved  with 
costs.  The  order  will  be  made  to  that  effect. 

CITED  in  Hinchman  v.  Pat.  Horse  R.  R.  Co.,  2  C.  E.  80;  Atty.  Gen.  v. . 
Morris  <&  Essex  R.  R.  Co.,  4  C.  E.  Gr.  393;  Greenwich  v.  Easton  <&  Am- 
boy  R.  R.  9  C.  E.  Gr.  224;  State,  Felix  Pros.  v.  Atlantic  City,  5  Vr.  105; 
State,  Hoboken  Land  &  Imp.  Co.  v.  Hoboken,  G  Vr.  207;  State,  May.  &. 
Aid.  of  J.  C.  Pros.  v.  Montclair  R.  R.  Co.,  6  Vr.  331;  N.  J.  Southern  R. 
R.  Co.  v.  Long  Branch  Comrs.  10  Vr.  32. 


P.  GRANDIN,  executor  of  Mary  McCullough,  deceased,  vs.. 
THE  ADMINISTRATOR  or  JOSEPH  READING,  deceased. 

Where  a  person  renders  services  to  another,  relying  solely  upon  his  generos- 
ity, and  expecting  to  be  compensated  by  a  legacy,  he  cannot,  when  disap- 
pointed in  such  expectation,  maintain  an  action  at  law  for  the  value  of  his 
services. 

A  court  of  equity  will  look  at  aD  the  circumstances  of  the  case,  and  will 
judge  from  them  as  to  the  quo  animo  with  which  the  services  were  ren- 
dered ;  and  although  a  reasonable  expectation  was  entertained,  which  was 
disappointed,  will  only  allow  compensation  if  it  is  equitable  that  such  al- 
lowance should  be  made. 

>  n  old  lady,  iipwards  of  eighty-five  years  of  age,  lived  with  her  son.  She 
placed  money  in  his  hands,  from  time  to  time,  for  investment ;  he  collected 
the  interest,  as  it  was  due,  and  paid  it  over  to  her.  This  continued  for 
eight  years.  An  allowance  for  commissions  for  such  services  was  refused. 


J.  F.  Randolph,  for  complainant. 
A.  Wurts,  for  defendant. 

THE  CHANCELLOR.  After  carefully  examining  all  the 
facts  and  circumstances  of  this  case,  I  have  come  to  the 
conclusion  that  it  is  proper  and  just  that  an  allowance 
should  be  made  for  the  board  and  maintenance  of  Mary 
McCullough,  during  the  period  of  her  permanent  resi- 
dence with  Joseph  Reading.  It  is  true,  where  a  person 
renders  services  to  another  relying  solely  upon  his  gene- 
rosity, and  expecting  to  be  compensated  by  a  legacy,  he 
cannot,  when  disappointed  in  his  expectation,  maintain 


MAY  TERM,  1855.  371 

Grandin  v.  Reading. 

an  action  at  law  for  the  value  of  those  services.  Mrs. 
McCullough,  when  she  went  to  reside  and  make  her  home 
with  Mr.  Reading,  was  nearly  eighty  years  of  age.  She 
had  between  fifteen  hundred  and  two  thousand  dollars  of 
her  own,  which  Mr.  Reading,  at  her  particular  request,  re» 
ceived  into  his  hands  for  the  purpose  of  investing  for  her 
benefit.  In  October,  1843,  some  three  years  after  her  resi- 
dence with  Mr.  Reading,  she  made  her  will,  leaving  the 
principal  part  of  her  property  to  her  daughter,  Mr.  Read- 
ing's wife.  In  October,  1848,  her  son  came  from  Ohio, 
and  took  his  mother  home  with  him.  She  was  then 
eighty-five  years  of  age.  In  less  than  two  months  she 
made  her  will,  and  in  less  than  four  months  after  died. 
By  the  last  will,  she  gives  Mrs.  Reading  a  legacy  of  two 
hundred  dollars,  and  to  her  son,  the  complainant,  she 
gives  nearly  all  the  residue  of  her  property.  There  is  no 
dispute  as  to  her  competency  to  make  a  will.  It  is  very 
certain  that  Mr.  Reading  expected  his  wife  to  be  the  prin- 
cipal beneficiary  of  the  testatrix,  and  he  had  a  right  to 
expect  it.  The  old  lady  had  lived  in  his  house  for  nearly 
eight  years,  and  had  been  kindly  and  tenderly  cared  for. 
At  the  age  of  eighty-five,  she  is  carried  off  to  the  state  of 
Ohio,  and  before  she  had  been  under  her  son's  roof  two 
months,  she  makes  a  will  in  his  favor,  and  forgets  the  obli- 
gatioas  she  was  under  to  those  who  had  watched  over 
and  protected  her  in  her  old  age.  Her  age  and  situation, 
in  relation  to  the  complainant,  account  for  this,  without 
attributing  to  her  the  sin  of  ingratitude.  These  considera- 
tions can  do  Joseph  Reading  no  good,  in  a  legal  point  of 
view,  but  they  are  of  a  character  to  induce  a  court  to  look 
at  the  claim  he  sets  up  with  a  favorable  eye.  This  old 
lady  was  maintained  by  him  for  eight  years.  The  law  im- 
plies a  contract  on  her  part  to  remunerate  him.  To  de- 
prive him  'of  the  benefit  of  this  implication,  the  court 
should  be  satisfied  that  lie  looked  alone  to  Mrs.  McCul- 
lough's  will  for  remuneration,  and  intended  to  rely  upon 
her  generosity  solely.  I  am  not  satisfied  from  the  evidence 


372  CASES  IN  CHANCERY. 

Grandinu.  Reading. 

that  such  was  Joseph  Heading's  intention.  Mrs.  McCul- 
lough lived  with  him  more  than  three  years  without 
making  a  will ;  and  after  she  did  make  it,  there  is  evidence 
of  but  once  when  the  subject  was  ever  mentioned  be- 
tween them.  Mrs.  Heading  intended  that  he  should  be 
remunerated  for  the  benefits  conferred.  He  has  a  legal 
and  equitable  claim  to  such  remuneration,  and  I  do  not 
consider  that  there  is  any  evidence  of  a  character  to  deprive 
him  of  his  legal  rights. 

But  a  further  claim  is  set  up  by  the  defendants  in  behalf 
of  their  intestate,  which  is  for  compensation  rendered  by 
Joseph  Reading,  as  the  agent  of  Mrs.  McCulloch,  in 
taking  care  and  charge  of  her  business.  I  am  disposed  to 
allow  to  the  defendants  all  I  can  in  this  case,  but  I  do 
not  think  this  claim  can  be  supported.  All  the  service 
proved  to  have  been  rendered  was  this.  He  received  •  her 
money,  and  put  it  out  at  interest,  and  accounted  to  her 
for  the  interest  .from  time  to  time.  It  is  not  shown  how 
this  service  was  rendered.  The  character  of  the  invest- 
ments is  not  shown.  Indeed,  from  anything  that  appears 
to  the  contrary  in  the  case,  Mr.  Reading  used  this  money 
in  his  own  business,  without  making  any  investment  in 
the  name  of  Mrs.  McCullough.  Under  the  circumstances 
this  service  was  rendered,  the  law  will  not  imply  any  ob- 
ligation on  the  part  of  Mrs.  McCullough  to  remunerate 
Mr.  Reading.  These  services  were  performed  during  a 
period  of  eight  years.  If  Mr.  Reading  intended  to  charge 
commissions,  he  should  have  made  the  charges,  and  de- 
ducted them  from  time  to  time,  as  he  accounted  with  his 
principal. 

In  taking  the  account,  a  proper  allowance  will  be  made 
by  the  master  for  the  maintenance  of  Mrs.  McCullough 
during  the  period  she  resided  with  him  after  the  14th  of 
February,  1840. 

CITED  in  Smith  v.  Smith's  adms.,  4  Dutch.  216. 


MAY  TEEM,  1855.  373 


Williamson  v.  Chamberlain. 


WILLIAM  "WILLIAMSON  and  WIFE  vs.  JAMES  P.  CHAMBER- 
LAIN and  others. 

CONSTRUCTION  OF  WILL. 

A  testator  made  certain  specific  devises  and  bequests  to  several  of  his  chil- 
dren. He  then  gave  a  life  estate  to  his  wife  in  his  real  and  personal  prop- 
erty not  specifically  disposed  of.  He  then  declared  that  his  real  and  per- 
sonal estate,  after  the  death  of  his  wife,  unless  his  wife  choose  to  give  up 
the  estate  before  her  decease,  should  be  sold,  and  divided  among  certain  of 
his  children;  and  then  declares,  that  if  any  of  his  children  should  die 
without  lawful  issue  of  the  body  begotten,  then  his,  her,  or  their  share, 
or  legacy,  should  be  equally  divided  among  the  survivors,  share  and  share 
alike.  Held,  that  he  used  the  term  survivors  with  reference  to  the  period 
when  the  estate  should  be  divided,  after  the  happening  of  the  event  men- 
tioned in  his  will,  to  wit,  the  death  of  his  wife. 


Mercer  Beasley,  for  complainants. 
Alexander  Wurts,  for  defendants. 

THE  CHANCELLOR.  Amos  Hoagland  died  in  1807.  By 
liis  will,  he  disposed  of  his  property  as  follows : 

"  It  is  my  will  that  my  executors  shall  dispose  of  so 
much  of  my  personal  property,  at  public  or  private  sale,  as 
will  enable  them  to  discharge  the  aforesaid  debts  and 
funeral  clia-rges,  and  likewise  forty  dollars,  which  I  give  to 
my  beloved  wife  for  her  immediate  use ;  and  the  remainder 
of  my  personal  property,  if  any  there  be,  to  remain  on 
my  farm.  Item.  It  is  my  will  that  my  wife  Mary  shall 
be  entitled  to  all  the  rents,  issues,  and  profits  of  my  es- 
tate, both  real  and  personal,  for  the  bringing  up,  main- 
tenance, and  education  of  my  children  during  her  natural 
life  or  widowhood.  Item.  I  give  unto  my  wife  Mary 
one  of  the  best  feather  beds,  and  furniture  thereunto  be- 
longing. I  also  give  unto  my  said  wife  the  largo  blue 
cupboard,  and  all  the  linens  it  doth  contain.  Lastly.  I 
give  unto  my  said  wife  a  certain  negro  girl,  named  Rose, 
now  living  with  a  certain  James  Lake,  to  be  to  her  and 

VOL.  ii.  2  i 


374  CASES  IN  CHANCERY. 

Williamson  v.  Chamberlain. 

her  heirs  for  ever.  Item.  I  give  unto  mj  son  Jonathan 
the  sum  .of  one  thousand  dollars,  and  to  my  younger  son, 
Amos,  the  sum  of  three  hundred  dollars ;  to  my  daughter 
Rebecca  two  hundred  dollars,  and  to  my  daughter  Mary 
two  hundred  dollars,  to  be  to  them  and  their  heirs 
for  ever,  but  not  to  be  paid  until  my  estate,  both  real  and 
personal,  be  sold  and  divided.  Item.  It  is  my  will  that 
my  daughter  Hannah,  the  wife  of  William  "Williamson, 
shall  occupy  and  have  during  her  natural  life  full  posses- 
sion, and  be  entitled  to  all  the  rents,  issues,  and  profits  of 
a  certain  lot  of  land  lying  and  being  in  the  township  of 
Bethlehem,  county  of  Hunterdon,  and  state  of  New  Jersey. 
And  after  the  death  of  my  daughter  Hannah,  wife  oi 
William  Williamson,  it  is  my  will  that  the  lot  be  sold 
by  my  executors,  and  the  money  arising  by  the  sale  of 
the  lot  aforesaid  to  be  divided  among  the  children  of  mj 
daughter  Hannah,  the  wife  of  William  Williamson,  sharo 
and  share  alike,  as  they  shall  attain  to  the  age  of  twenty 
one  years.  Item.  It  is  my  will,  and  I  do  enjoin  it  upoi> 
my  executors,  that  they  take  charge  of  the  above  said  lot 
of  land  in  Bethlehem ;  that  there  be  no  abuse  of  said  lot) 
or  timber  cut  and  destroyed  for  any  use  whatever,  except 
for  the  necessary  use  of  the  said  lot.  Item.  It  is  my  will 
that  after  the  death  of  my  wife  that  all  my  estate,  both 
real  and  personal,  except  my  said  wife  chooses  to  give  up 
the  estate  before  her  decease,  be  sold,  and  the  money 
arising  by  the  sales  to  be  divided  as  follows  amongst  my 
several  children,  named  Jonathan,  Andrew,  Rebecca, 
Amos,  and  Mary,  to  be  divided  among  them  and  to  their 
heirs  for  ever  share  and  share  alike.  Item.  It  is  my  will 
that  my  daughter  Sarah,  wife  of  Jacob  Williamson,  shall 
have  the  use  and  benefit  of  one  equal  share  with  the  rest 
of  my  children  as  long  as  she  shall  live,  and  after  her 
decease  the  mother's  share  result  to  her  lawful  heirs  of 
her  body  begotten,  share  and  share  alike,  as  they  shall 
attain  to  'the  age  of  twenty-one  years.  Item.  It  is  my 
will  that  if  any  of  my  children  shall  die  without  lawful 


HAY  TEEM,  1855.  375 

Williamson  v.  Chamberlain. 

issue  of  the  body  begotten,  then  his,  her,  or  their  share 
or  legacy  to  be  equally  divided  amongst  the  survivors, 
share  and  share  alike.  Item.  It  is  my  will,  and  I  hereby 
order,  that  in  case  the  nominal  shares  of  my  estate 
amount  to  a  greater  sum  than  the  lot  which  my  daughter 
Hannah,  wife  of  William  Williamson  now  lives  in,  then 
and  in  such  case  Hannah  shall  have  a  right  to  an  equal 
share  of  the  overplus  more  than  the  value  of  the  lot." 

The  bill  alleges  that  the  estate  was  finally  settled  many 
years  ago,  and  was  distributed  among  the  several  legatees, 
and  that  Jonathan  Hoagland,  who  was  one  of  the  execu- 
tors, and  also  one  of  the  legatees,  received  and  retained, 
as  his  distributive  share,  the  sum  of  $2000  ;  that  in  the 
year  1851,  Jonathan  Hoagland  died,  leaving  a  consider- 
able estate,  amounting  to  much  more,  after  payment  of . 
all  claims  against  his  estate,  than  the  amout  he  received 
from  his  father's  estate.  At  the  time  of  his  death,  all  his 
brothers  and  sisters  were  dead,  except  his  sister  Eebecca 
Vanfliet  and  the  complainant,  Hannah  Chamberlain. 
The  complainants  claim,  by  their  bill,  that  Jonathan 
Hoagland,  having  died  without  issue,  the  share  which  he 
received  under  his  father's  will  must,  according  to  the 
provisions  of  that  will,  be  equally  divided  between  the 
said  sisters  who  survived  him.  The  defendant,  who  is  the 
executor  of  Jonathan  Hoagland,  has  demurred  to  the  bill. 
Upon  these  pleadings  the  question  arises  upon  construc- 
tion of  the  will  of  Amos  Hoagland. 

When  the  testator  declared  that  if  any  of  his  children 
should  die  without  lawful  issue  of  the  body  begotten, 
then  his,  her,  or  their  share,  or  legacy,  should  be  equally 
divided  among  the  survivors,  share  and  share  alike,  he 
used  the  term  "survivors"  with  reference  to  the  period 
when  the  estate  should  be  divided  after  the  happening  of 
the  event  mentioned  in  his  will,  to  wit,  the  death  of  his 
wife.  I  think  that  this  was  manifestly  the  intention  of  the 
testator,  looking  at  the  whole  will.  He  had  made  certain 
specific  devises  and  bequests  to  several  of  his  children. 


376  CASES  IN  CHANCERY. 

\ » 

Williamson,  v.  Chamberlain. 

He  then  gives  a  life  estate  to  his  wife  in  his  real  and  per- 
sonal property  not  specifically  disposed  of.  He  then  de- 
clares that  his  real  and  personal  estate,  after  the  death  of 
his  wife,  unless  his  wife  chooses  to  give  up  the  estate  be- 
fore her  decease,  shall  be  sold  and  divided  among  certain 
of  his  children ;  and  then  follows  the  clause  of  the  will 
which  has  given  rise  to  the  dispute.  After  the  death  of 
the  widow,  the  estate  was  settled,  and  was  disposed  of 
according  to  the  directions  of  the  will,  and  Jonathan  re- 
ceived his  share.  It  was  the  intention  of  the  testator  that 
when  Jonathan  received  his  share,  he  should  take  it  abso- 
lutely, and  not  in  such  a  way  as  to  create  a  limitation 
over  after  his  death,  in  the  event  of  his  dying  without 
issue. 

But  whatever  may  be  the  constmction  of  this  clause  of 
the  will,  I  do  not  think  that  the  complainant,  Hannah,  was 
intended  by  the  testator  to  be  benefitted,  in  any  event,  by 
the  property  thereby  disposed  of.  He  had  before  made  a 
devise  to  Hannah  of  all  the  rents  and  profits  of  certain 
real  estate,  directing  the  same  to  be  sold  at  her  death,  by 
his  executors,  and  the  proceeds  divided  among  the  com- 
plainant's children.  He  then  makes  the  bequest,  which 
has  given  rise  to  this  controversy,  to  his  six  children, 
Jonathan,  Andrew,  Rebecca,  Amos,  Mary,  and  Sarah. 
Then  follows  the  clause,  "  If  any  of  my  children  shall 
die,"  &c.  The  testator  here  referred  to  the  six  children 
just  before  named.  The  language  is  not  applicable  to  the 
devise  before  made  to  the  complainant,  Hannah,  "  then 
his  or  her  share  or  legacy  to  be  equally  divided."  Han- 
nah had  no  share  with  her  brothers  and  sisters  in  the  es- 
tate to  be  divided  after  her  mother's  death. 

I  cannot  see,  upon  any  construction  of  the  will,  that 
the  complainants  have  any  claim  against  the  defendants. 
The  demurrer  is  well  taken,  and  the  bill  must  be  dismissed 
with  costs. 


MAY  TERM,  1855.  377 


Scudder  v.  Stout. 


WILLIAM  SCTTDDER  and  WIFE  vs.  JONATHAN  O.  STOTTT  and 

others. 


Where  the  testator  directs  a  sale  of  land  to  be  made,  and  the  proceed  to  be 
divided  among  his  heirs  at  law,  they  may  elect  to  take  the  lands,  and  a 
court  of  equity  will  secure  to  them  the  benefit  of  that  election. 

Where  all  interested  had  entered  into  an  agreement  to  divide  the  real  estate 
itself  into  such  proportions  as  they  deemed  just  in  reference  to  their  re- 
spective interest  in  the  proceeds,  and  it  appeared  that  the  parties  had  lived 
ten  years  under  the  agreement ;  that  the  ownership  of  the  property  had 
become  so  changed  that  the  agreement  could  not  be  disturbed  without 
grossly  violating  the  rights  of  some  of  the  parties  to  it,  and  fraudulently 
depriving  them  of  their  property ;  that  the  executors  had  acquiesced  in  it, 
and  induced  such  a  state  of  things  as  made  it  a  fraud  in  them  to  disturb  it, 
the  court  said,  that  the  plea  that  such  an  agreement  was  illegal  because  one 
of  the  parties  was  a  feme  covert,  came  with  an  ill  grace  as  a  defence  on  the 
part  of  the  executors,  who  had  subsequently  sold  a  portion  of  the  property 
released  under  the  agreement. 

A.t  the  time  of  the  execution  of  the  agreement,  the  husband  of  one  of  the 
parties  had  been  absent  six  years  and  upwards.  The  report  was  that  he 
was  dead:  it  was  so  considered  by  the  family.  When  the  executors  sold 
the  property,  he  had  been  absent  sixteen  years,  and  the  party  was  married 
again.  At  that  time  no  court  of  law  or  equity  would  have  disturbed  the 
agreement  on  the  ground  alleged. 

But  although  the  executors  acted  in  bad  faith,  and  in  violation  of  the  rights 
of  those  interested  in  the  will  of  the  testator,  it  does  not  follow,  as  a  conse- 
quence of  their  fraud,  that  a  sale  made  by  them  is  void,  they  being  author- 
ized by  the  will  to  sell  the  land,  and  their  being  no  proof  that  the  grantee* 
•were  cognizant  of  the  agreement. 

Where  the  purchase  money  of  such  sale  had  been  wrongfully  paid  over  to 
one  not  entitled  to  it,  the  court  held  complainants  entitled  to  an  account, 
and  ordered  the  money  brought  into  court. 


M.  Beasley,  for  complainants. 
TF.  Hoisted,  for  defendants. 

THE  CHANCELLOR.  William  Smith  died  in  1823,  leaving 
considerable  real  and  personal  estate.  The  real  estate 
consisted  of  what  may  be  designated  the  homestead  farm, 
of  about  ninety-six  acres ;  the  Sherman  farm,  of  sixty- 
seven  acres ;  the  Bonham  lot,  of  eight  and  a  half  acres ; 

2  i* 


378  CASES  IN  CHANCEKY. 

Scudder  v.  Stout. 

and  the  Waterhouse  lot,  of  six  acres.  He  left  his  wife  sur- 
viving him,  and  three  children  ;  a  son,  Asa,  and  two 
daughters,  Amy,  who  was  single,  and  Elizabeth,  wife  of 
Jonathan  Sutton.  He  left  a  will,  and  by  it,  made  the  fol- 
lowing disposition  of  his  real  estate.  He  gives  to  his  wife 
and  to  his  son  Asa  the  use  of  the  homestead,  until  it 
should  be  sold  by  his  executors.  The  Sherman  farm  and 
the  Bonham  farm  he  authorizes  his  executors  to  sell  as 
soon  after  his  decease  as  they  might  think  proper,  and,  from 
the  money  thence  arising,  to  discharge  his  debts  and  the 
legacies  of  his  will,  and  whatever  should  remain  over  a 
thousand  dollars,  to  divide  equally  between  his  wife  and 
three  children,  except  his  daughter  Elizabeth  Sutton's 
share,  which  the  executors  were  to  retain  until  her 
marriage  was  dissolved.  If  she  was  living  when  that 
event  happened,  she  was  to  receive  her  share.  In  case  of 
her  death,  her  husband  surviving  her,  the  executors  were 
to  pay  it  to  her  children.  The  testator  then  directs  that 
as  soon  after  the  expiration  of  six  years  from  the  time  of 
his  decease  as  his  executors  should  think  proper,  they 
should  sell  all  the  residue  of  his  estate,  consisting  of  his 
homestead  farm  with  all  such  lots  of  land  as  might  then 
belong  to  his  estate,  and  the  money  thence  arising  to  be 
divided  into  four  shares,  one  for  his  wife,  one  for  his  son 
Asa,  one  for  the  use  of  his  daughter  Elizabeth,  and  one 
for  his  daughter  Amy.  The  testator  gave  a  legacy  of  two 
hundred  dollars  to  his  grandson,  and  appropriated  the  in- 
terest of  one  thousand  dollars  to  be  paid  yearly  to  his 
wife,  for  her  support.  These  legacies  were  charged  on  the 
Sherman  and  Bonham  farms.  Upon  the  death  of  his  wife, 
the  testator  directed  that  all  the  property  given  to  her,  or 
for  her  use,  including  the  thousand  dollars,  should  be 
equally  divided  between  his  three  children. 

In  March,  1829,  following  the  expiration  of  the  period 
after  which  the  executors  were  authorized  to  sell  the 
homestead  farm,  the  executors  had  not  exercised  the 
discretion  given  them  by  the  will  to  sell  any  of  the  real 


OCTOBER  TERM,  1855.  379 


Scudder  v.  Stout. 


estate  of  the  testator.  It  had  not  been  necessary  for  them 
to  do  so.  The  personal  estate  had  paid  all  the  debts,  and 
also  the  annuity  to  the  widow,  up  to  that  time  ;  and  there 
was  left  in  the  hands  of  the .  executor,  undisposed  of,  the 
sum  of  eight  hundred  and  eight  dollars  and  seventy  cents. 
This  being  the  situation  of  the  estate,  and  no  one  be- 
ing interested  in  it  but  the  three  children  and  their  mother, 
they  considered  that  it  was  for  their  mutual  advantage 
instead  of  having  the  real  estate  sold  by  the  executors  for 
the  sole  purpose  of  distributing  among  them  the  proceeds 
of  such  sale,  to  divide  the  real  estate  itself  among  them- 
selves, in  such  proportions  as  they  deemed  just  in  refer- 
ence to  their  respective  interest  in  the  proceeds,  agree- 
ably to  the  provisions  of  the  testator's  will.  They  did  ac- 
cordingly, on  the  llth  of  March,  1829,  enter  into  an 
agreement,  under  their  respective  seals,  by  which,  after 
reciting  so  much  of  the  will  of  the  testator  as  explained 
the  object  they  had  in  view,  they  agreed  to  divide  all  the 
real  estate  as  follows  :  The  widow  and  two  daughters  were 
to  release  to  Asa  Smith  all  their  right  and  title  in  the 
Shennan  and  Bonham  farms,  and  Asa  agreed  to  release 
to  his  mother  and  sisters  all  the  residue  of  the  real  estate, 
subject  to  the  payment  of  sixty  dollars  a  year  to  the 
mother  during  her  life,  and  at  her  death  the  same  to  be 
the  property  of  the  sisters  free  of  all  encumbrances.  This 
agreement  was  fully  carried  out  by  all  the  parties  to  it. 
Shortly  after  it  was  entered  into,  Amy  Smith  married. 
She,  with  her  husband,  her  mother,  and  sister,  executed 
the  necessary  releases  to  Asa  Smith,  and  Asa  and  his  wife 
executed  appropriate  releases  on  their  part.  They  entered 
into  the  possession  of  their  respective  portions  according 
to  the  division,  and  after  quietly  enjoying  such  possession 
for  a  number  of  years,  and  while  in  possession,  Elizabeth, 
Amy,  and  Asa  Smith  died,  all  of  them,  up  to  the  time  of 
their  decease,  satisfied  with  the  family  arrangement  that 
had  been  made,  and  unmolested  in  their  possession  by 
any  one  claiming  the  right  to  interfere  with  it.  Amy 


380  CASES  IN  CHANCERY. 


Scudder  v.  Stout. 


Smith  was  married  to  Jonathan  O.  Stout,  who  is  one  of 
the  defendants  in  this .  suit.  They  had  one  child,  Mary, 
who  married  William  Scudder.  They  are  the  complain- 
ants in  this  suit.  We  come  now  to  their  cause  of  com- 
plaint. 

On  the  llth  of  April,  1840,  the  executors  sold  all  that 
part  of  the  real  estate  which,  in  the  arrangement  and  di- 
vision, was  set  off  and  released  by  Asa  Smith  to  his 
mother  and  sisters.  The  bill  charges  that  the  sale  was 
made  at  the  instigation  of  Jonathan  O.  Stout,  for  the  pur- 
pose of  getting  that  portion  of  the  real  estate  which  be- 
longed to  his  wife  converted  into  personalty,  and  obtain- 
ing the  money  as  her  administrator.  It  charges  that  he 
frequently  urged  his  wife,  during  her  life,  to  sell  her  es- 
tate, which  she  always  refused  to  do,  and  that,  after  her 
death,  he  induced  the  executors  to  make  the  sale  under 
the  authority  of  their  testator's  will.  It  charges  that  the 
executors  frudulently  connived  with  Stout  to  enable  him 
to  accomplish  his  purpose,  and,  also,  that  the  purchasers 
who  are  defendants  in  the  suit,  were  cognizant  of  the 
fraud,  and  purchased  with  full  knowledge  of  all  the  facts. 
The  bill  prays  that  the  sale  may  be  declared  void,  and 
may  be  set  aside,  so  far  as  respects  the  interest  of  Mary 
Scudder,  and  that  she  may  be  decreed  entitled  to  one  half 
of  the  said  real  estate  sold  by  the  executors,  subject  to 
her  father's  interest  as  tenant  by  the  curtesy ;  or,  if  more 
equitable,  that  she  may  be  declared  entitled  to  the  pro- 
ceeds of  the  sale,  as  representing  the  land,  subject  to  her 
father's  right  to  the  interest  during  his  life,  by  reason  of 
his  marital  rights. 

I  have  no  hesitation  in  declaring  that  this  sale  was  not 
made  bonafide  by  the  executors.  The  sale  was  a  breach 
of  trust,  and  grossly  fraudulent  in  its  consequences  as  to 
the  rights  and  interest  of  Mary  Scudder,  who  was  then 
an  infant  under  ten  years  of  age. 

Look  at  the  consequences  of  this  sale  upon  the  rights 
of  the  parties  interested.  The  Sherman  farm  and  Bonham 


MAY  TEEM,  1855.  381 


Scudder  v.  Stout. 


lot  were  charged  by  the  testator  with  the  thousand  dollar 
fund,  which  was  created  by  the  testator  for  the  purpose 
of  securing  the  annuity  to  the  widow.  The  executors 
were  directed  to  sell  them  for  that  purpose.  They  were 
amply  sufficient  to  secure  the  object  for  which  the  testator 
had  designated  them.  These  lands,  in  the  family  arrange- 
ment, were  released  to  Asa  Smith.  The  executors  never 
disturbed  him  in  his  possession.  They  permitted  him  to 
enjoy  the  full  advantage  of  the  agreement.  He  became 
insolvent,  and  the  lands  were  sold  as  his,  by  due  course 
of  law,  for  the  benefit  of  his  creditors.  The  executors 
then  sold  the  lands,  which  Asa  had  released  to  his  sisters, 
and  paid  over  to  his  administrator  one-third  of  the  pro- 
ceeds of  the  sale.  Thus  Asa  got  not  only  the  two  tracts 
of  land  released  to  him,  which  was  all  he  was  entitled  to, 
but  one-third  of  the  proceeds  of  the  residue  of  the  testa- 
tor's real  estate.  This  was  a  fraud.  It  was  produced  by 
the  conduct  of  the  executors.  Their  proceeding  cannot  be 
justified  upon  any  considerations  which  appear  in  the  case 
as  it  is  presented. 

The  executors  are  not  here  to  answer  for  themselves. 
Let  us  see  what  plea  their  representatives  interpose  to  justify 
the  course  they  pursued. 

They  deny  that  the  sale  was  made  at  the  instigation  of 
Stout,  or  upon  any  fraudulent  combination  with*  Stout. 
This  allegation  of  the  bill  is  not  sustained  by  proof,  but 
the  history  of  the  case  shows  that  there  was  ground  for 
the  charge.  But  the  defendants,  as  the  main  ground  to 
justify  the  executors,  say,  that  the  family  agreement,  and 
the  releases  to  carry  it  into  effect,  were  not  valid  in  law, 
because,  at  the  time  of  their  execution,  Elizabeth  Sutton 
was  a  feme  covert.  It  is  not  denied  that  if  the  parties  were 
capable  of  contracting,  the  agreement  was  lawful  and 
valid.  When  the  testator  directs  a  sale  of  land  to  be  made, 
and  the  proceeds  to  be  divided  among  his  hiers  at  law, 
they  may  elect  to  take  the  lands,  and  a  court  of  equity 
will  secure  to  them  the  benefits  of  that  election.  Rinchart 


382  CASES  IN  CHANCERY. 

Scudder  v.  Stout. 

and  wife  v.  Harrison's  Executors,  1  Bald.  179 ;  Oest  v.  Flock 
et  at.,  1  Green's  Ch.  Rep.  115  ;  Amler  v.  Amler,  3  Ves.  583. 

The  plea,  that  the  agreement  was  not  legal  because 
Elizabeth  Sutton  was  a  feme  covert,  comes  with  an  ill  grace 
as  a  defence  on  the  part  of  the  executors.  One  of  the  ex- 
ecutors drew  up  the  agreement.  It  is  produced,  and 
proved  to  be  in  his  handwriting.  The  parties  lived  ten 
years  under  this  agreement.  They  died  under  it,  undis- 
turbed by  these  executors.  Third  parties  had,  by  due 
course  of  law,  acquired  rights  under  it.  The  ownership 
of  the  property  had  become  so  changed  that  the  agree- 
ment could  not  be  disturbed  without  grossly  violating  the 
rights  of  some  of  the  parties  to  it,  and  fradulently  de-- 
priving  them  of  their  property.  The  executors  had  ac- 
quiesced in  the  agreement,  and  by  their  conduct  had  in- 
duced such  a  state  of  things  as  made  it  a  fraud  in  them 
to  disturb  it.  Admit  the  agreement  was  not  valid  for  the 
reason  alleged.  No  party,  who  had  a  right  so  to  do,  had 
questioned  it ;  and  these  executors  could  not  be  made 
responsible  to  any  one  for  any  delinquency.  It  is  pre- 
tended they  were  responsible  to  the  widow  for  her  annuity. 
But  this  is  a  mere  pretence.  As  she  was  a  party  to  the 
agreement,  and  by  it  had  relinquished  her  claim  upon  the 
executors,  under  no  circumstances  could  she  make  them 
responsible. 

AVas  the  agreement  invalid  ?  At  the  time  of  its  execu- 
tion, Mrs.  Sutton's  husband  had  been  absent  six  years 
and  upwards.  The  report  was  that  he  was  dead.  It  was 
BO  considered  by  the  family.  When  the  executors  sold, 
Mrs.  Sutton  had  been  married  a  second  time.  Sutton  had 
then  been  absent  sixteen  years.  At  that  time  no  court  of 
law  or  equity  would  have  disturbed  the  agreement  on  the 
ground  alleged.  The  executors  were  not  justified  in  selling 
•  the  property  on  this  ground ;  and  such  an  excuse,  under 
the  circumstances  of  this  case,  can  be  considered  only 
as  a  mere  pretence.  I  am  bound  to  say,  from  the  facts  be- 
fore me,  that  the  executors  acted  fraudulently  in  selling 


MAY  TEEM,  1855.  383 


Scudder  v.  Stout. 


the  property,  for  no  good  reason  is  given,  nor  do  I  see 
that  any  ca*  be  suggested,  for  their  making  the  sale. 

But  although  the  executors  acted  in  bad  faith,  and  in 
violation  of  the  rights  of  those  interested  in  the  will  ot 
the  testator,  it  does  not  follow,  as  a  consequence  of  their 
fraud,  that  the  sale  made  by  them  is  void.  The  executors 
were  authorized  by  the  will  to  sell  the  land.  Their 
grantees  were  not  bound  to  know  of  the  agreement  made 
by  those  who  were  interested  in  the  lauds  to  be  sold,  or 
to  make  inquiry  for  any  other  disposition  of  the  land  than 
such  as  the  executors,  by  the  will,  were  authorized  to 
make.  The  record  was  not  notice  to  them  of  the  agree- 
ment. The  bill  charges  that  they  were  cognizant  of  all 
the  facts.  This  is  not  proved.  It  is  true  the  defendants 
have  not  put  in  any  answer  denying  the  charge.  It  does 
not  follow  that  because  they  have  not  answered,  a  decree 
pro  confesso  must  necessarily  be  taken  against  them.  The 
court  may  direct,  when  the  defendants  have  not  answered, 
a  decree  pro  confesso,  or  order  the  complainants  to  make 
proof  of  their  case.  Other  defendants,  against  whom 
charges  were  made  which,  if  true,  involved  such  know- 
ledge on  the  part  of  the  grantees,  have  denied  such 
charges.  The  complainants  have  attempted  to  make  the 
proof,  and  have  failed,  These  grantees  stand  before  the 
court  as  innocent  parties,  and  they  are  in  a  position  not 
necessarily  involving  them  in  the  consequences  of  a  fraud 
committed  by  others.  I  do  not  think  the  case  is  such  as 
will  warrant  an  interference  with  the  title  of  the  grantees 
of  the  executors. 

It  remains  to  determine  whether  the  complainant  is 
entitled  to  any  relief ;  and  if  so,  what  that  relief  is.  The 
mother  of  the  complainant,  Mary  Scudder,  was  entitled, 
under  the  will  of  her  father,  to  one-third  of  all  the  pro- 
ceeds of  his  real  estate,  subject  to  certain  encumbrances 
imposed  by  the  testator.  She  made  an  election,  in  a  mari- 
ner which  by  law  she  had  a  right  to  do,  by  which  she  be- 
came entitled,  with  her  sister,  to  one  moiety  of  the  home- 


384 CASES  IN  CHANCEEY. 

Scudder  v.  Stout. 

stead  farm.  She,  her  sister,  and  her  brother,  were  seized 
in  fee  of  this  land  as  the  heirs  at  law  of  their  father,  and 
their  brother  released  to  them,  thus  making  the  two  ten- 
ants in  common.  While  thus  seized,  Amy  Smith  married 
the  complainant,  Stout,  who,  with  her,  and  in  her  right, 
entered  into  possession  of  the  land.  Stout  and  his  wifo 
were  in  possession  under  the  family  arrangement  and 
agreement.  While  thus  seized,  his  wife  died,  leaving  the 
complainant,  Mary  Scudder,  then  an  infant  of  tender 
years,  her  heir  at  law.  Stout  thus  became  tenant  by  the 
ourtesy.  The  executors  then  sold  the  land.  Stout  took 
out  letters  of  administration  upon  his  wife's  estate,  and,  as 
administrator,  claims  one-third  of  the  proceeds  of  the  sale. 
On  behalf  of  the  complainants,  it  is  insisted  that  one  half 
of  the  land  sold  by  the  executors  belonged  to  Mary  Scud 
der,  as  the  heir  of  her  mother,  and  that  the  executors 
should  be  declared  trustees  holding  the  proceeds  for  her 
b3nefit,  subject  to  remuneration  to  her  father  out  of  the 
same  for  interest  in  the  lands,  as  tenant  l>y  the  curtesy. 

It  appears  to  me  that  the  rights  of  the  parties  turn  upon 
the  proper  answer  to  the  single  question,  was  Amy  Stout, 
when  she  died,  legally  entitled  to  one  half  of  the  home- 
stead farm  under  the  agreement  she  had  entered  into  with 
her  brother  and  sister,  or  was  she  entitted  in  no  other 
right  than  under  the  will  of  her  father,  and  only  to  one- 
third  of  the  proceeds  after  the  sale  of  it  by  the  executors  ? 
I  have  already  expressed  the  opinion  that  the  agreement 
was  a  valid  and  a  legal  agreement.  If  so,  one  half  of  the- 
farm  was  hers.  When  she  died  it  descended  to  her  daugh- 
ter, as  her  heir  at  law.  If  the  executors  have  sold  it  wrong- 
fully, and  this  court  cannot  redress  the  injured  party  by 
restoring  the  land,  it  is  equitable  that  the  proceeds  of  that 
sale  should  be  secured  to  her.  This  court  will  restore  her 
to  her  rights,  as  far  as  it  is  able.  She  was  entitled  to  one 
half  of  the  land,  subject  to  the  right  by  the  curtesy  of  her 
father,  and  the  same  interest  should  be  secured  to  her  in 
the  proceeds.  The  defendants  say,  that  one-third  of  these 


385  MAY  TEEM  1855. 

Executors  of  Shreve  v.  Shreve. 

proceeds  have  been  paid  over  to  the  personal  representa- 
tive of  Asa  Smith.  If  so,  such  payment  was  wrongfully 
made.  The  executors  knew  that  Asa  Smith  had  received 
from  his  sisters  all  his  interest  in  the  real  estate  of  his 
father,  and  that,  by  his  deed,  he  had  conveyed  to  his  sisters 
all  his  interest  in  the  homestead  farm.  He  was  not  entitled 
to  any  of  the  proceeds.  He  had  a  perfect  right  to  convey 
his  interest  to  his  sisters.  The  executors,  with  a  knowledge 
of  the  fact  that  he  had  done  so,  had  no  more  right  to  pay 
any  of  the  proceeds  to  his  personal  representative  than  they 
had  to  make  such  payment  to  a  perfect  siranger.  It  was  a 
.fraud  for  them  to  do  so. 

The  complainants  are  entitled  to  an  account  for  one  half 
of  the  proceeds  of  the  homestead  farm,  deducting  the  one- 
sixth  of  the  one  thousand  dollars  paid  to  the  representatives 
of  Asa  Smith,  deceased,  and  to  have  the  money  brought 
into  court,  to  abide  its  further  directions  as  to  the  disposi- 
tion of  the  fund. 


THE    EXECUTORS   OF    JAMBS   SHKEVE,   deceased,  et  al.  vs. 
JAMES  SHKEVE  et  al. 

A  residuary  disposition  will  carry  all  the  contingent  or  reversionary  interest 
which  a  specific  devise  shall  leave  undisposed  of.  Generally  speaking, 
where  a  specific  devise  fails  on  account  of  its  being  void  ab  initio  the  prop- 
erty so  devised  will  go  to  the  heir  at  law.  But  if  the  specific  devise  dis- 
pose only  of  a  partial  or  contingent  interest  in  the  lands,  leaving  an  ulterior 
or  alternate  interest  undisposed  of,  that  would,  in  the  absence  of  disposi- 
tion, descend  to  the  heir.  Such  undisposed  of  interest  will  jwss  by  a  gen- 
eral residuary  clause. 

Every  residuary  devise  of  real  estate,  however  general  the  terms  of  it,  is  in 
its  nature  specific.  As  this  principle  follows  from  the  fact,  that  the  devisor 
can  only  devise  the  lands  to  which  he  is  actually  entitled  at  the  time  of 
making  his  will,  a  question  might  arise,  how  far,  in  New  Jersey,  it  should 
be  considered  applicable  to  after  nri|uiivd  lands,  since,  by  the  statute  of 
1851,  the  distinction  between  real  and  personal  estate  in  this  jMirticular  u 
abolished. 

VOL.  u.  2  K 


386  CASES  IN  CHANCERY. 

Executors  of  Shreve  v.  Shreve. 

Where  no  directions  are  given  by  the  testator  for  the  payment  of  his  debts, 
specific  legacies  must  be  appropriated  before  real  estate  devised ;  but  where 
the  testator  makes  his  debts  a  charge  upon  his  real  as  well  as  personal 
estate,  or  upon  his  estate  generally,  the  devisees  and  legatees  must  bear 
their  respective  share  of  the  burthen  pro  rata  ;  and  this  is  the  case  where 
the  testator  commences  his  will  with  a  general  direction  that  his  debts 
shall  be  paid. 

The  testator  left  four  daughters,  two  grandsons,  children  of  a  deceased  son, 
his  deceased  son's  widow,  and  his  own  wife,  the  devisees  of  all  his  property. 
He  first  directs  his  executors  to  pay  off  and  discharge  all  his  debts.  He 
gives  to  his  wife,  during  her  natural  life,  the  sole  and  exclusive  use  of  all 
his  plate,  books,  &c.  To  his  daughter  in  law,  he  devises  the  sole  and  ex- 
clusive use  and  occupancy  and  all  the  rents  and  profits  of  the  Biddle  farm, 
to  be  held  and  enjoyed  by  her  from  the  time  of  his  decease  until  the  25th 
day  of  March  immediately  preceding  the  time  when  his  grandson  should 
arrive  at  the  age  of  twenty-one  years,  with  the  proviso,  and  upon  the  con- 
dition, that  his  said  daughter  in  law  should,  within  three  months  after  his 
decease,  execute  and  deliver  to  his  executors  a  full  and  absolute  release  and 
discharge  of  all  claims  and  demands  she  might  have  against  his  estate.  To 
bis  two  grandsons,  from  the  said  25th  day  of  March,  he  gives  the  Biddle 
farm,  as  joint  tenants,  with  remainder  to  their  issue  in  fee,  and  in  default 
of  issue  to  the  right  heirs  of  the  testator.  He  also  gives  to  his  grandson 
one  third  part  of  his  pine  lands  and  cedar  swamp.  To  his  four  daughters, 
the  testator  gives  his  homestead  farm  and  two-thirds  of  his  pine  lands  and 
cedar  swamps,  with  an  estate  of  the  same  character  as  that  devised  to  his 
grandsons.  He  then  devises  and  bequeaths  to  his  four  daughters,  to  their 
heirs  and  assigns  for  ever,  all  the  rest,  residue,  and  remainder  of  his  estate, 
to  be  equally  divided  among  them  share  and  share  alike,  subject  only  to 
the  payment  of  all  just  claims  against  him  on  note,  or  book  of  account, 
funeral  charges,  testamentary  and  incidental  expenses,  and  commissions. 
The  testator  left  one  specialty  debt,  which  was  a  bond  debt,  the  principal 
of  which  was  $6000,  and  which  was  due  to  his  daiighter  in  law.  She  re- 
fused to  comply  with  the  proviso  under  which  the  devise  was  made  to  her, 
under  the  will,  of  the  Biddle  farm.  All  the  personal  estate  which  passed 
under  the  residuary  clause  had  been  appropriated  to  pay  the  simple  con- 
tract debts,  and  there  was  a  deficiency.  There  was  no  other  personal 
estate,  except  the  specific  legacies  to  the  widow.  As  to  the  simple  con- 
tract debts,  it  was  admitted  that  the  specific  devises  must  contribute 
pro  rata. 

Held,  that  as  to  the  simple  contract  debts,  the  interest  of  the  residuary  de- 
visees in  the  Biddle  farm  must  contribute  pro  rata  with  the  other  specific 
devises  to  pay  the  simple  contract  debts,  but  as  to  the  specialty  debt,  it  is 
not  liable  to  contribution.  Decreed  that  the  residuary  personal  estate  be 
first  appropriated  to  pay  the  simple  contract  debts  of  the  testator  and  ex- 
pense of  settling  the  estate ;  that  the  specific  legacies  and  devisees  contribute 
pro  rata  to  make  up  any  deficiency ;  and  as  to  the  specialty  debts,  the 
specific  devises,  except  that  of  the  Biddle  farm,  which  fell  into  the  residue, 
first  contribute  pro  rata  to  pay  the  specialty  debts,  the  residuary  devise  of 
the  Biddle  farm  being  liable  only  in  the  event  of  a  deficiency  of  all  other 
property  to  pay  the  specialty  debts. 


OCTOBER  TEEM,  1855.  387 


Executors  of  Shreve  v,   Shreve. 


J.  C.  Ten  Eyck  and    W.  L.  Dayton,  for  complainants. 
J.  R.  Slack  and  A.  Browning,  for  defendants. 

THE  CHANCELLOR.  The  decision  of  the  questions  sub- 
mitted in  this  cause  involves  the  construction  of  the  will 
of  James  Shreve,  deceased.  The  whole  case  turns  upon 
the  intention  of  the  testator  as  to  what  funds  should  pay 
his  debts,  and  in  what  order  they  should  be  appropriated 
for  that  purpose.  The  testator  left  four  daughters,  two 
grandsons,  children  of  a  deceased  son,  his  deceased  son's 
widow,  and  his  own  wife,  the  devisees  of  all  his  property. 
He  first  directs  his  executors  to  pay  off  and  discharge  all 
his  debts.  He  gives  to  his  wife,  during  her  natural  life, 
the  sole  and  exclusive  use  of  all  his  plate,  books,  house- 
hold goods,  and  furniture  ;  and  he  gives  to  her  absolutely 
all  his  groceries,  meat  and  provision  in  his  house  at  the 
time  of  his  death.  To  his  daughter  in  law,  he  devises  the 
sole  and  exclusive  use  and  occupancy,  and  all  the  rents 
and  profits  of  the  Biddle  farm,  to  be  held  and  enjoyed  by 
her  from  the  time  of  his  decease  until  the  twenty-fifth  day 
of  March  immediately  preceding  the  time  when  his  grand- 
son, James  Shreve,  should  arrive  at  the  age  of  twenty-one 
years,  with  the  proviso  and  upon  the  condition  that  his 
said  daughter  in  law  should,  within  three  months  after 
his  decease,  execute  and  deliver  to  his  executors  a  full 
and  absolute  release  and  discharge  of  all  claims  and  de- 
mands she  might  have  against  his  estate.  To  his  two 
grandsons,  from  the  said  twenty-fifth  day  of  March  imme- 
diately preceding  his  grandson's  (James)  arriving  to  the 
age  of  twenty-one,  he  gives  the  Biddle  farm,  as  joint  ten- 
ants, with  remainder  to  their  issue  in  fee,  and  in  default 
of  issue,  to  the  right  heirs  of  the  testator.  He  also  gives 
to  his  grandsons  one  third  part  of  his  pine  lands  and  cedar 
swamp.  To  his  four  daughters,  the  testator  gives  his 
homestead  farm  and  two-thirds  of  his  pine  lands  and 
cedar  swamps,  with  an  estate  of  the  same  character  as 


388  CASES  IN  CHANCEKY. 

Executors  of  Shreve  v.  Shreve. 

that  devised  to  his  grandsons.  He  then  devises  and  be- 
queaths to  his  four  daughters,  to  their  heirs  and  assigns 
for  eve.r,  all  the  rest,  residue,  and  remainder  of  his  estate, 
wheresover  the  same  may  be  found,  to  be  equally  divided 
among  them  share  and  share  alike,  subject  only  to  the 
payment  of  all  just  claims  against  him  on  note,  or  book 
of  account,  funeral  charges,  testamentary  and  incidental 
expenses,  and  commissions.  The  testator  appointed  two 
of  his  daughters  and  liis  son  in  law  to  execute  his  will. 
They,  together  with  the  other  daughters  of  the  testator, 
have  filed  this  bill  against  the  two  grandsons,  who  are  in- 
fants, and  who  appear  and  defend  by  their  guardian.  The 
guardian  answered  the  bill,  and  the  cause  conies  up  on 
final  hearing  upon  the  pleadings  and  proofs  taken. 

The  testator  left  one  specialty  debt,  which  was  a  bond 
debt,  the  principal  of  which  was  $6000,  and  which  was 
due  to  his  daughter  in  law.  She  refused  to  comply  with 
the  proviso  upon  which  the  devise  was  made  to  her,  under 
the  will,  of  the  Biddle  farm.  The  devise  to  her,  there- 
fore, does  not  take  effect,  and  this  debt,  which  she  refused 
to  release,  must  be  paid  out  of  the  estate.  The  other 
debts  were  considerable.  All  the  personal  estate  wrhich% 
passed  under  the  residuary  clause  of  the  will  has  been 
appropriated  to  pay  the  simple  contract  debts,  and  there 
is  a  deficiency  of  about  nineteen  hundred  dollars.  There 
is  no  other  personal  estate  of  the  testator,  except  the  spe- 
cific legacies  which  he  bequeathed  to  his  widow,  appraised 
and  valued  at  eight  hundred  and  seventy-seven  dollars. 
Out  of  what  funds  are  the  remaining  simple  contract 
debts  to  be  paid,  and  the  specialty  debt  before  referred 
to? 

It  is  important,  in  the  first  place,  to  ascertain  the  char- 
acter of  the  estate  of  the  testator  still  unappropriated. 
We  have  the  specific  legacies  to  the  testator's  wife,  the 
specific  devises  to  his  daughters,  the  specific  devises  to 
his  grandsons,  and  the  estate  in  the  Biddle  farm  up  to 
the  twenty-fifth  day  of  March  immediately  preceding  the 


MAY  TEEM,  1855.  389 


Executors  of  Shi-eve  r.  Shreve. 


time  when  the  testator's  grandson,  James  Shreve,  shall 
arrive  at  the  age  of  twenty-one  years.  "Who  is  entitled 
to  this  estate  in  the  Biddle  farm  until  the  period  when  the 
gransons  take  it  ?  It  was  devised,  by  the  testator,  to  his 
daughter  in  law,  upon  the  express  condition  that  she 
would  execute  and  deliver  to  his  executors  a  full  and  ab- 
solute release  and  discharge  of  all  claims  and  demands 
she  might  have  against  his  estate.  She  has  refused  to  do 
this.  The  estate  passed  by  the  residuary  clause  of  the 
will,  by  which  the  testator  gave  to  his  four  daughters, 
and  to  their  heirs  and  assigns  for  ever,  all  the  rest,  residue, 
and  remainder  of  his  estate,  wheresoever  the  same  may 
be  found.  A  residuary  disposition  will  carry  all  the  con- 
tingent or  reversionary  interest  which  a  specific  devise 
shall  leave  undisposed  of.  Generally  speaking,  where  a 
specific  devise  fails  on  account  of  its  being  void  ab  initio, 
the  property  so  devised  will  go  to  the  heir  at  law.  But  if 
the  specific  devise  dispose  only  of  a  partial  or  contingent 
interest  in  the  lands,  leaving  an  ulterior  or  alternate  in- 
terest undisposed  of,  that  would,  in  the  absence  of  dispo- 
sition, descend  to  the  heir.  Such  undisposed  of  interest 
will  pass  by  a  general  residuary  clause.  Poicell  on  Devises 
105-6. 

In  Doe,  on  the  demise  of  Wells  and  otJiers,  against  Scott 
and  another  (3  Maule  &  Sel.  Rep.  300)  the  testator  devised 
all  his  lands  at  II.  to  J.  M.,  his  heir  at  law,  his  heirs  and  as- 
signs for  ever,  provided  that  he  or  his  heirs  did,  within 
six  months  after  his  decease,  assure  to  R.  M.  and  his  chil- 
dren certain  copyhold  premises ;  and  in  default  of  such 
assurance,  the  testator  gave  the  premises  to  II.  M.  for  life, 
and  from  and  after  his  decease  to  his  children  living  at 
the  time  of  his  decease,  their  heirs  and  assigns  for  ever, 
as  tenants  in  common  :  J.  M.  and  R.  M.  died  unmarried 
in  the  testator's  lifetime.  It  was  held  that  this  was  not  a 
lapsed  devise  of  the  whole  interest,  so  as  to  belong  to  the 
heir  at  law  of  the  devisor,  but  by  reason  of  the  contin- 
gent interest  which  remained  undisposed  of,  if  J.  M. 

2K* 


390  CASES  IN  CHANCERY. 

Executors  of  Shreve  v.  Shreve. 

should  not  assure,  and  R.  M.  should  die  without  children, 
the  residuary  devisees  to  whom  was  devised  all  the  rest  of 
the  devisor's  lands,  wheresoever  situate,  were  entitled. 
The  undisposed  of  interest,  then,  in  the  Biddle  farm 
passed  under  the  residuary  clause  to  the  testator's 
daughters.  It  is  a  specific  devise  to  them,  as  much  so  as 
is  the  devise  of  the  homestead  farm.  Every  residuary  de- 
vise of  real  estate,  however  general  the  terms  of  it,  is  in 
its  nature  specific.  Powell  on  Devises  103  ;  Howe  v.  Earl 
of  Dartmoutli,  7  Ves.  147  ;  Broome  v.  Mon~k,  10  Ves.  605  ; 
Hill  v.  Cook,  1  Ves.  &  Beam.  175.  As  this  principle,  as 
the  authorities  state,  follows  from  the  fact  that  the  devisor 
can  only  devise  the  land  to  which  he  is  actually  entitled, 
at  the  time  of  making  his  will,  a  question  might  arise,  how 
far,  in  New  Jersey,  it  should  be  considered  applicable  to 
after  acquired  lands  ;  since,  by  the  statute  of  1851,  the  dis- 
tinction between  real  and  personal  estate  in  this  particu- 
lar is  abolished.  No  such  question,  however,  is  involved 
in  this  case.  The  testator  was  seized  and  possessed  of  all 
the  lands  disposed  of  by  him  at  the  time  his  will  was  ex- 
ecuted. The  estate  then  in  the  Biddle  -farm,  which  passed 
under  the  residuary  clause,  is  a  specific  devise,  and  must 
stand  on  the  same  footing  as  the  other  devises  (all  being 
specific)  as  to  payment  of  debts,  unless  the  testator  has  de- 
clared his  intention  otherwise.  Has  he  done  so  ? 

As  to  the  simple  contract  debts,  it  is  admitted  that  the 
specific  devises  must  contribute  pro  rata ;  but  as  to  the 
special  debt,  the  complainants  insist  that  the  testator  has 
exempted  the  residuary  estate,  and  that  the  interest  in  the 
Biddle  farm,  which  passed  with  the  residue,  is  not  liable 
to  contribution  for  the  payment  of  this  debt. 

In  the  first  place,  the  testator  charges  his  whole  estate, 
both  real  and  personal,  with  the  payment  of  his  debts. 
By  the  first  item  of  his  will,  he  directs  his  executors  to 
pay  off  and  discharge  all  his  debts.  Having  made  his 
debts  a  burthen  upon  all  his  estate,  he  devises  and 
bequeaths  the  residue  of  his  estate  to  his  daughters, 


MAT  TEEM,  1855.  391 


Executors  of  Shrere  v.  Shreve. 


subject  only  to  the  payment  of  his  simple  contract  debts. 
The  greatest  part  of  this  property  was  subject  to  the 
payment  of  all  the  simple  contract  debts,  as  the  primary 
fund  for  that  object,  and  the  rest  of  it,  upon  general 
principles  of  law,  was  subject  to  contribution  with  the 
other  specific  devises.  When,  therefore,  the  testator 
declared  that  the  residuary  estate  should  be  subject  only 
to  the  payment  of  simple  contract  debts,  he  meant  to 
exonerate  it  from  the  burthen,  which  otherwise  it 
must  have  borne  as  a  common  fund,  of  other  debts. 
If  it  is  not  exonerated  from  the  payment  of  the  speci- 
alty debt,  this  intention  of  the  testator  will  be  defeated. 
I  am  of  opinion,  therefore,  that  as  to  the  simple  con- 
tract debts,  the  interest  of  the  residuary  devisees  in  the 
Biddle  farm  must  contribute  pro  rata  with  the  other  spe- 
cific devises  to  pay  the  simple  contract  debts  ;  but  as  to 
the  specialty  debt,  it  is  not  liable  to  contribution.  The  only 
remaining  question  is,  when  and  how  the  specific  legacies 
must  be  appropriated  ? 

The  general  rule  is,  where  no  directions  are  given  by 
the  testator  for  the  payment  of  his  debts,  specific  legacies 
must  be  appropriated  before  real  estate  devised ;  but 
where  the  testator  makes  his  debts  a  charge  upon  his  real 
as  well  as  his  personal  estate,  or  upon  his  estate  generally, 
the  devisees  and  legatees  must  bear  their  respective  share 
of  the  burthen  pro  rata  /  and  this  is  the  ease  where  the 
testator  commences  his  will,  with  a  general  direction  that 
his  debts  shall  be  paid.  2  Jarmati  on  Wills  540  ;  Irvin  v. 
Ironmonger,  2  Russel  &  M.  591.  As  has  been  already  ob- 
served, the  testator  in  this  case  charges  his  whole  estate 
with  the  payment  of  his  debts.  lie  commences  his  will 
with  a  general  direction  to  his  executors  to  pay  off  and 
discharge  all  his  debts,  as  soon  as  can -conveniently  be 
done  after  his  decease.  The  specific  devises  and  legacies 
must,  therefore,  contribute  pro  rata  to  pay  the  simple  con- 
tract debts. 

Let  a  decree  be  made,  with  directions  that  the  residuary 


392  CASES  IN  CHANCERY. 

Holcombe  v.  Coryell. 

personal  estate  be  first  appropriated  to  pay  the  simple  con- 
tract debts  of  the  testator,  and  the  expenses  of  settling  the 
estate ;  that  the  specific  legacies  and  devises  contribute 
pro  rata  to  make  up  any  deficiency  required  to  pay  these 
debts  and  expenses ;  and  that  as  to  specialty  debts,  the 
specific  devises,  excepting  that  of  the  Biddle  farm,  which 
fell  into  the  residue,  first  contribute  pro  rata  to  pay  the 
specialty  debts,  the  residuary  devise  of  the  Biddle  farm 
being  liable  only  in  the  event  of  a  deficiency  of  all  other 
property  to  pay  the  specialty  debts. 

REVERSED.— Shreve  v.  Shreve,  2  C.  E.  Gr.  487. 


CAUOLIXE  HOLCOMBE,  by  her  Guardian,  vs.  JOHN  CORYELL, 
and  others,  executors,  &c. 

On  a  bill  filed  on  behalf  of  an  infant  complainant  to  compel  executors  and 
trustees  under  a  will  to  account  for  the  estate  of  the  testator  which  has 
come  to  their  hands,  and  for  the  execution  of  their  trust,  complainants  are 
entitled  to  an  account  as  a  matter  of  course. 

The  testator  directs  that  all  the  residue  of  his  personal  estate,  after  payment 
of  debts  and  legacies,  shall  be  invested  in  productive  real  estate.  This  does 
not  authorize  the  executors  to  purchase  vacant  lots,  and  erect  buildings 
upon  them.  Such  property  cannot  be  considered  productive  real  estate. 

The  testator  authorizes  his  executors  to  make  suitable  and  convenient  im- 
provements and  necessary  repairs  on  the  real  estate  in  their  possession. 
This,  in  connection  with  the  language  used  as  to  the  purchase  of  productive 
real  estate,  is  inconsistent  with  the  idea  that  the  testator  meant  his  execu- 
tors to  purchase  vacant  lots,  and  erect  buildings  upon  them. 

The  testator  directs  the  disposition  of  a  surplus,  which  he  contemplates  will 
remain  after  the  improvements  made :  this  hardly  comports  with  the  idea 
that  they  should  use  the  funds  in  their  hands  indiscriminately  in  the  erec- 
tion of  buildings. 

The  testator  creates 'two  funds  with  his  property.  The  real  estate  left  by 
him  at  his  death,  with  such  real  estate  as  the  executors  are  authorized  to 
purchase  with  his  personal  property,  constitute  one  fund.  The  residue  of 
the  proceeds  of  all  his  real  estate,  after  paying  for  improvements  and  re- 
pairs, is  to  be  kept  annually  at  interest,  and  this  constitutes  another  fund. 


MAY  TEEM,  1855.  393 

JHolcombe  v.  Coryell. 

The  bill  was  filed,  on  behalf  of  an  infant  complainant, 
to  compel  the  defendants,  as  executors  of  the  will  of  John 
Holcombe,  deceased,  and  as  trustees  under  that  will,  to 
account  for  the  estate  of  the  testator  that  had  come  to  their 
hands,  and  for  the  execution  of  their  trust. 

Randolph  and  Peter  I.  Clark,  for  complainants. 
W.  Hoisted^  for  defendants. 

THE  CHANCELLOR.  Let  a  reference  be  made  to  James 
Wilson,  esq.,  one  of  the  masters  of  this  court,  to  take  an 
account,  as  follows : 

first.  Of  all  the  personal  property  of  the  testator  at  the 
time  of  his  death,  and  charging  the  executors  with  the 
same,  as  respectively  received  by  them. 

Second.  Of  all  the  personal  property  which  has  come  to 
the  hands  of  the  executors,  respectively,  or  which,  by  due 
diligence,  they  might  have  received. 

Third.  Of  the  rents  and  issues  of  the  real  estate,  which 
have  come  to  the  hands  of  the  executors,  respectively,  or 
which  by  due  diligence  they  might  have  received. 

Fourth.  Of  all  the  real  estate  of  the  testator  of  which 
he  died  seized,  and  stating  the  annual  value  of  the  different 
parcels  thereof,  as  near  as  can  be  ascertained. 

Fifth.  Of  all  the  debts,  legacies,  and  expenses  paid  by 
the  executors,  respectively,  in  the  due  administration  of  the 
estate,  and  showing  the  residue  of  the  personal  estate  in  the 
hands  of  the  executors,  and  of  which  of  them,  after  such 
discharge. 

Sixth.  Of  the  investments  made  by  the  executors  in  pro- 
ductive real  estate,  if  any,  witli  the  residue  of  the  personal 
estate,  as  ascertained  as  aforesaid. 

Seventh.  Of  the  moneys  expended  by  the  said  executors, 
as  trustees  under  the  will,  in  improvements  and  repairs  of 
the  real  estate,  and  the  character  of  such  improvements. 

Eighth.  Of  the  investments,  if  any,  of  the  rents  and 
profits  of  the  real  estate. 


89±  CASES  IX  CHAXCEET. 

Holcombe  o.  Coryell. 

Ninth.  Of  the  amount  due  the  estate  of  the  testator,  at 
the  time  of  his  death,  by  John  Coryell,  after  allowing  him 
all  just  set-off,  stating  the  accounts  between  the  parties. 

Tenth.  Of  the  amount  due  the  estate  of  the  testator,  at 
the  time  of  his  death,  by  Alexander  Coryell,  after  allowing 
him  all  just  set-offs,  stating  the  accounts  between  the 
parties. 

Eleventh.  To  examine  and  report  whether  it  is  for  tho 
interest  of  the  cestui  que  trust  that  the  conveyance  made 
by  Alexander  Coryell,  dated  September  24th,  1853,  to  the 
executors  and  trustees  should  stand ;  and  also,  whether  it 
is  for  their  interest  that  the  conveyances  made  by  John 
Coryell  to  the  executors  and  trustees  of  the  mill  property 
and  of  the  brick  houses  in  Lambertville  should  stand. 

These  accounts  should  have  been  taken  on  the  coming  in 
of  the  answer.  The  complainant  was  entitled  to  an  account, 
as  a  matter  of  course.  I  do  not  deem  it  proper  to  decide 
this  case  finally  until  such  accounts  are  taken.  If  these  de- 
fendants, or  any  of  them,  have  violated  their  trust,  and  the 
court  is  called  upon  to  remove  them  for  such  misconduct, 
it  is  important  and  requisite  to  have  an  accurate  statement 
of  the  accounts,  in  order  that  the  court  may  protect,  by  its 
decree,  the  right  of  the  parties  interested. 

There  was  some  argument  upon  the  construction  of  the 
will,  and  it  is  proper  that  I  should  not  pass  it  over  without 
some  intimation  of  my  views  in  reference  to  it.  The  testa- 
tor directs  that  all  the  residue  of  his  personal  estate,  after 
payments  of  debts  and  legacies,  shall  be  invested  in  pro- 
ductive real  estate.  This  does  not  authorize  the  executors 
to  purchase  vacant  lots,  and  erect  buildings  upon  them. 
Such  property  cannot  be  considered  as  productive  real 
estate.  It  is  unproductive  property,  made  productive  after 
purchase,  which  cannot  be  said  to  be  properly  within  the 
intention  of  the  testator. 

By  the  fourth  clause  of  the  third  codicil,  the  testator 
authorizes  his  executors  to  make  suitable  and  convenient 
improvements  and  necessary  repairs  on  the  real  estate  in 


MAY  TERM,  1855.  395 

Holcombe  r.  Coryell. 

their  possession.  I  think  this,  in  connection  with  the  lan- 
guage used  as  to  the  purchase  of  productive  real  estate, 
is  inconsistent  with  the  idea  that  the  testator  meant  his 
executors  to  purchase  vacant  lots,  and  erect  buildings 
upon  them.  Tne  fifth  clause  of  the  third  codicil  shows 
that  the  testator  contemplated  that,  after  the  improvements 
made,  there  would  remain  a  surplus  in  the  executors' 
hands,  and  he  directs  its  disposition.  This  hardly  com- 
ports with  the  idea  that  he  intended  they  should  use  the 
funds  in  their  hands  indiscriminately  in  the  erection  of 
buildings. 

The  payment  annually  to  the  complainant  is  to  be  made 
out  of  the  real  estate ;  and  I  think  it  was  clearly  the  in- 
tention of  the  testator  that  the  improvements  and  repairs 
upon  the  real  estate  are  to  be  made  out  of  the  rents  and 
profits  of  the  real  estate,  and  not  out  of  the  personal 
estate  which  he  left  at  his  decease  ;  for  he  directs  specific- 
ally what  payments  shall  be  made  out  of  the  personal,  and 
that  the  residue  shall  be  invested  in  real  estate,  and  then 
disposes  of  it  as  a  separate  fund. 

The  testator  creates  two  funds  with  his  property.  The 
real  estate  left  by  him  at  his  death,  with  such  real  estate 
as  the  executors  are  authorized  to  purchase  with  his  per- 
sonal property,  constitute  one  fund.  The  residue  of  the 
proceeds  of  all  his  real  estate,  after  paying  for  improve- 
ments and  repairs,  is  to  be  kept  annually  at  interest,  and 
this  constitutes  another  fund.  I  have  ordered  an  inquiry 
by  the  master  respecting  the  properties  conveyed  by  the 
Coryells  to  the  estate.  What  course  the  court  may  deem 
proper  to  take  in  reference  to  them,  will  depend  in  a 
measure  upon  the  result  of  the  investigation  of  the  mas- 
ter. The  court  may  find  it  necessary  to  let  these  convey- 
ances stand  as  a  security  to  the  estate. 

SAME  CASK.— 3  Stock.  2S2,  470,  549;  Affirmed— 1  Beaa.  289;  S.  C.,  2  Becu. 
4KJ.415,  417. 


CASES 

ADJUDGED  IN 

THE   COURT  OF  CHANCERY 

OF  THE  STATE  OF  NEW  JERSEY, 
OCTOBER  TERM,  1855. 

DOUGHTY  and  WILSON  vs.  JULIUS  KING  and  others. 

J.  K.,  of  the  firm  of  McM.,  R.  &  Co.,  when  the  firm  was  in  failing  circum- 
stances, conveyed  his  real  estate  to  F.  D. ,  in  trust  for  his  wife.  The  deed 
was  set  aside  in  favor  of  the  complainants,  who  were  judgment  and  execu- 
tion creditors  of  the  firm,  on  the  ground,  that  from  the  answer  of  the  de- 
fendants, and  the  proofs  in  the  case,  it  appeared  that  no  consideration  was 
paid,  and  that  it  was  executed  for  the  purpose  of  protecting  the  property 
from  the  creditors  of  the  firm. 


Thomas  /£  Dudley  and  A.  Browning,  for  complainants. 
G.  S.  Cannon  and  James  Wilson,  for  defendants. 

THE  CHANCELLOR.  This  bill  is  filed  by  the  complainants, 
as  judgment  creditors  of  McMnrtrie,  King  &  Co.,  for  the 
benefit  of  themselves  and  other  creditors  who  shall  come 
in  and  contribute  to  the  expenses  of  the  suit.  The  ob- 
ject of  the  bill  is  to  set  aside  a  conveyance  of  real  pro- 
perty, which  was  made  by  Julius  King  to  Francis  Durmot, 
in  trust  for  King's  wife.  The  complainants  have  taken 
out  execution,  and  levied  upon  this  property.  It  is  shown 


OCTOBER  TEEM,  1855.  397 

Doughty  v.  King. 

that  the  judgment  debtors  are  insolvent,  and  have  no 
property  out  of  which  the  judgment  can  be  satisfied.  The 
bill  alleges  that  the  conveyance  is  fraudulent,  and  was 
made  to  defeat  and  defraud  creditors ;  that  while  it  pur- 
ports to  be  for  the  consideration  of  one  thousand  dollars, 
paid  by  the  grantee,  no  money  was  in  fact  paid,  and  that 
the  deed  was  executed  to  McDurmot,  and  placed  upon 
record  without  his  knowledge  or  consent,  and  that  when 
the  deed  was  executed  King  was  insolvent. 

McDurmot  has  answered  the  bill.  He  admits  that  the 
deed  was  made  to  him,  and  put  upon  record  without  any 
consultation  with  him  and  without  his  knowledge,  and 
that  he  paid  no  consideration  himself,  and  has  no  knowl- 
edge of  any  consideration  having  been  paid  by  any  one. 
He  says  he  has  a  mortgage  on  the  same  premises,  which 
was  executed  to  him  by  King  and  his  wife,  in  1852,  to  se- 
cure a  debt  of  four  hundred  dollars. 

King  and  wife  also  answered  the  bill.  They  deny  that 
at  the  time  the  trust  deed  was  executed,  the  firm  of 
McMurtrie,  King  &  Co.  was  insolvent.  They  admit  that 
McDurmot  did  not  know  of  the  conveyance  at  the  time  it 
was  executed,  and  deny  that  it  was  made  to  defeat  the 
complainants  or  any  other  creditor  of  the  firm.  They 
state  that  the  reason  McDurmot  was  not  consulted  was 
because  he  resided  at  Hoboken,  a  distance  from  them,  but 
that  they  knew  him  to  be  their  friend,  and  that  they  were 
informed  they  might  use  any  one's  name  as  trustee.  They, 
f  urther  say,  that  at  the  time  of  the  execution  of  the  deed^, 
the  sum  of  five  hundred  dollars,  in  specie,  was  then  paid 
by  Susan  Schultz,  the  sister  of  Julia  R.  King,  to  the  said 
Julius  King,  and  that,  on  the  twentieth  day  of  September 
following,  the  balance  of  the  consideration  money  was 
paid,  in  specie  or  bills,  to  the  said  Julius  King  by  the  said 
Susan  Schultz  ;  that  the  money  so  paid  was  loaned  by  the 
said  Susan  to  the  said  Julia,  to  be  by  her  lent  to  her  hus- 
band, on  condition  that  the  said  Julius  King  would  con- 
vey the  property  in  question  in  trust  for  the  benefit  of  his 

VOL  H.  2  L 


398  CASES  IN  CHANCEKY. 

Doughty  v.  King. 

wife ;  that  the  deed  was  accordingly  executed  on  the 
twenty-third  of  August,  and  recorded  on  the  twenty- 
seventh  day  of  August,  1853. 

The  defendants  make  out  a  very  unsatisfactory  case  by 
their  answer.  In  August,  the  firm  of  McMurtrie,  King  & 
Co.  are  extensively  engaged  in  business,  and  although  the 
answer  alleges  that  they  were  not  then  insolvent,  we  find 
them  in  one  little  month  failing  for  a  large  amount,  and 
not  pretending  that  such  failure  was  occasioned  by  any 
unexpected  or  disastrous  loss  in  their  business.  In  less 
than  two  months  prioi  to  the  failure,  King  conveys  away 
all  his  real  estate  in  trust  to  his  wife,  and  under  very  sus- 
picious circumstances.  He  selects  a  trustee,  living  at  some 
distance  from  him,  without  consultation  with  him,  and 
puts  the  deed  upon  record  without  the  consent  of  the 
trustee.  There  is  an  inconsistency,  too,  about  the  consid- 
eration of  the  conveyance  difficult  of  explanation.  The  de- 
fendants say  that  the  money  was  loaned  to  the  wife  by  her 
sister,  on  condition  that  King  would  make  the  trust  deed. 
If  this  is  true,  who  is  to  repay  the  sister  for  the  money 
loaned  ?  The  wife  does  not  owe  the  debt,  for  she  could 
not  contract  it.  It  is  not  pretended  that  the  trust  property 
is  security  for  the  debt,  or  was  intended  to  be  so  by  the 
parties.  Julius  King,  then,  is  the  debtor,  and  Susan 
Schultz  his  creditor.  This  circuitous  way  of  doing  busi- 
ness is  not  explained.  The  account  given  by  the  answer 
of  the  whole  transaction  is  a  very  unsatisfactory  one,  and 
presents  a  case  of  great  suspicion.  With  this  unfavorable 
impression  of  the  case,  made  by  the  defendant's  own 
statement,  we  approach  the  evidence,  and  it  appears  to 
me  to  be  of  such  a  character  as  to  show  the  deed  fraudu- 
lent without  a  doubt. 

And  first,  as  to  the  insolvency  of  the  firm  of  McMurtrie, 
King  &  Co.  at  the  time  of  the  execution  of  the  deed.  In 
referring  to  the  fact  of  the  denial  of  insolvency  by  the 
answer,  I  ought  to  have  mentioned  the  reckless  manner 
in  which  the  denial  is  made.-  It  was  a  fact  about  which 


OCTOBER  TERM,  1855.  399 

Dotkghty  v.  King. 

Mrs.  King  could  certainly  know  nothing,  and  as  to  which 
no  answer  was  expected  from  her.  And  yet  Mrs.  King 
denies  the  insolvency  with  as  much  particularity  and  cer- 
tainty as  if  she  was  perfectly  familiar  with  all  the  partner- 
ship business  and  the  pecuniary  liabilities  of  the  firm. 
But  I  think  the  insolvency  of  King  and  of  the  firm  is 
satisfactorily  proved.  Cn  the  8th  of  October,  1853,  they 
made  an  assignment.  Their  debts  amounted  to  upwards 
of  $23000,  and  their  assets  will  not  pay  fifty  cents  on  the 
dollar.  On  the  23d  of  August  previous,  the  deed  was 
made.  They  were  driven  to  make  the  assignment  from 
losses  which  they  had  sustained  prior  to  the  date  of  the 
deed.  There  can  be  no  doubt  of  the  insolvency  of  King 
and  of  the  firm  on  the  23d  of  August.  It  is  proved  that 
the  firm  actually  suspended  payment  in  September,  and 
that,  in  August,  King  held  a  conversation  with  one  of  the 
clerks  in  the  store,  as  to  the  best  mode  of  the  partners  se- 
curing their  individual  property  from  the  creditors  of  the 
firm. 

To  prove  the  ~bonajuLes  of  the  deed,  the  defendants  offer 
Sarah  Schultz  as  a  witness.  As  to  her  evidence,  I  would 
remark,  in  the  first  place,  if  it  is  true,  the  answer  of  King 
and  wife  is  not  only  evasive  but  untrue.  The  answer  says, 
that  the  one  thousand  dollars  was  lent  by  this  witness  to 
her  sister,  Mrs.  King,  on  condition  that  King  would  con- 
vey the  property  in  trust  for  his  wife.  The  witness,  by  her 
evidence,  does  not  pretend  there  was  any  such  condition. 
She  says  her  sister,  Mrs.  King  informed  her  that  her  hus- 
band was  about  selling  the  property,  and  applied  for  mo- 
ney to  enable  her  to  buy  it,  and  that  she  advanced  tho 
money  as  a  consideration,  for  which  King  and  his  wife 
transferred  by  writing,  all  Mrs.  King's  interest  in  her 
grandfather's  estate,  with  the  understanding  that  if  that 
interest  exceeded  a  thousand  dollars,  the  witness  was  to 
make  it  up,  and  if  it  amounted  to  less,  then  Mrs.  King 
was  to  make  the  amount  good.  If  this  story  is  true, 
why  did  the  answer  conceal  it,  and  why  did  it  not 


400  CASES  IN  CHANCEKY. 

Doughty  v.  King. 

state  the  fact  of  the  agreement,  which  the  witness  alleges 
was  executed  to  her  by  King  and  his  wife  ?  But  the 
cross-examination  of  the  witness  shows  that  this  story 
cannot  be  relied  upon.  It  appears,  from  her  statement, 
that  Mrs.  King  is  one  of  seven  children  entitled  to 
the  property  of  her  grandfather  ;  that  the  estate  is  unset- 
tled in  consequence  of  the  death  of  the  executors,  and 
that  no  interest  has  been  received  from  it  for  the  last 
twenty-two  or  twenty-three  years.  The  witness  says  she 
does  not  know  the  amount  of  her  grandfather's  estate,  be- 
cause she  was  never  so  particular  as  to  enquire  ;  that  when 
she  was  a  child,  she  heard  her  mother  say  there  was  in 
money  several  hundred  dollars.  It  is  evident,  from  the 
witness'  statement,  that  this  estate,  as  a  security  for  the 
thousand  dollars,  is  a  mere  shadow. 

There  are  many  circumstances,  to  which  I  think  it  un- 
necessary to  refer,  going  to  show  that  this  deed  was  fraudu- 
lently made.  As  to  Julius  King's  intention  and  object  in 
making  the  conveyance,  we  have  the  testimony  of  Theo- 
dore McMurtrie,  a  clerk  in  his  store.  He  says,  "  Mr.  King 
asked  me  how  a  man  having  property  could  best  secure  it 
from  being  taken  from  him  for  debt.  I  answered,  by  mak- 
ing over  his  property  to  his  wife,  or  that  I  believed  that 
was  the  way.  He  asked  me  if  that  was  really  the  case.  I 
told  him  that  to  the  best  of  my  belief  it  was.  He  then 
exclaimed,"  "  slapped  his  knee  /with  his  hand,  and,  laugh- 
ing, went  out  of  the  room." 

I  am  satisfied  from  the  evidence,  that  this  deed  should 
not  be  permitted  to  stand  as  against  creditors. 


CASES  ADJUDGED 


IN    THE 


COURT  OF  ERRORS  AND  APPEALS 


O  F   T  HE 


ON  APPEAL  FROM  THE  COURT  OF  CHANCERY, 

AT  NOVEMBER  TERM,  1855. 


Between  ABEL  YOUNG,  appellant,  and  JOHN  RODMAN  PAUL, 
respondent. 

The  complainant  applied  to  the  defendant  to  purchase  his  farm.  After  some 
negotiation,  it  was  agreed  between  them,  that  if  the  complainant  would 
purchase  the  Butz  farm,  the  defendant  would  exchange  his  farm  for  the 
Bute  farm  and  a  thousand  dollars.  At  the  request  of  complainant,  de- 
fendant went  to  consult  his  wife  and  family ;  and  on  returning,  said  they 
would  all  assent  to  the  arrangement.  Complainant  then  purchased  the 
Butz  farm ;  and  being  obliged  to  leave,  authorized  his  brother,  as  agent  for 
him,  to  enter  into  a  written  agreement  with  defendant  for  the  exchange 
of  farms.  The  agreement  was  executed,  by  which  it  was  agreed  that  com- 
plainant should  convey,  free  and  clear  of  all  encumbrances,  the  Bute  farm 
to  the  defendant,  and  that,  on  the  same  day,  defendant  should  convey  hia 
farm  to  complainant;  and  complainant  agreed  to  pay  the  difference  of 
one  thousand  dollars;  the  wife  expressed  herself  satisfied  with  the  agree- 
ment. At  the  time  appointed,  complainant  tendered  his  deed,  signed  by 
himself  and  wife,  with  full  covenants,  and  the  defendant  tendered  a  deed 
not  signed  by  his  wifa 

Held,  that  as  the  refusal  of  the  wife  to  unite  with  her  husband  in  the  con- 
veyance was  owing  entirely  to  the  contrivance  and  fraud  of  the  defendant, 
who  in  this  way  was  endeavoring  to  deprive  the  complainant  of  the  benefit 
of  a  specific  performance  of  the  contract,  that  the  court  should  order  the 

2L* 


402       COUET  OF  EREOES  AND  APPEALS. 

Young  v.  Paul. 

agreement  performed,  and  the  conveyances  to  be  so  made  between  the 
parties  that  the  complainant  may  hold  4n  the  land  which  he  conveys  aii 
indemnity  against  any  future  claim  to  be  set  up  by  defendant's  wife. 

It  was  objected  that  the  wife  was  not  a  party  to  the  bill,  and  that  no  decree 
could  be  made  against  her  to  execute  the  deed,  as  she  was  not  a  party. 
But  the  Chancellor  said  no  decree  could  be  made  against  her,  if  she  were 
a  party.  If  she  had  actually  signed  the  agreement  with  her  husband,  it 
would  have  been  void  as  to  her. 

A  feme  covert  cannot  make  any  contract,  except  as  to  her  separate  estate. 
Had  the  wife  been  made  a  defendant,  a  demurrer,  as  to  her,  would  have 
been  sustained.  • 

It  was  further  said,  that  the  deed  tendered  was  a  substantial  compliance 
with  the  agreement,  because  it  contained  a  covenant  to  indemnify  the 
complainant;  but  it  was  held  that  no  court  would  say  that  a  mere  personal 
covenant  was  sufficient  indemnity. 

A  want  of  mutuality  in  the  contract  was  urged  as  an  objection  against  the 
decree,  that  the  agent  who  signed  for  the  complainant  was  not  legally 
authorized;  but  it  is  no  legal  unyielding  obstacle  to  the  court's  making  a 
decree,  that  the  contract  is  signed  only  by  one  of  the  parties. 

It  was  argued  that  the  decree  would  in  effect  force  the  wife  into  executing 
the  deed,  which  should  be  her  free  and  voluntary  act.  The  Chancellor 
said,  "  Upon  a  careful  examination  of  all  the  authorities,  if  the  alternative 
were  presented  to  me  of  making  a  decree  for  specific  performance  by  pro- 
curing the  wife  to  join  in  the  deed,  or  to  dismiss  the  bill,  I  should  accept 
the  latter." 

The  power  of  the  court  to  direct  indemnity  in  such  a  case  cannot  be  de- 
nied; it  is  the  proper  and  natural  mode  of  administering  equity  between 
the  parties. 

Cases  where  the  wife's  refusal  to  join  was  bona  fide,  and  not  the  result  of 
the  husband's  interference,  or  cases  where  an  action  for  damages  would  give 
adequate  redress,  are  not  within  the  ruling  of  this  case,  by  RYEKSON,  J. 

The  controlling  equity  of  the  case  is,  that  upon  the  faith  of  his  agreement 
with  Young,  complainant  was  drawn  into  the  purchase  of  the  Butz  farm, 
and  was  thus  placed  in  a  position  from  which  he  could  not  extricate  him- 
self. He  bought  the  farm  not  for  himself,  but  for  Mr.  Young.  POTTS,  J. 


The  bill  alleges  that  Abel  Young,  the  defendant,  is  the 
owner  of  a  farm,  supposed  to  contain  one  hundred  and 
Beven  acres,  situated  in  the  township  of  Oxford,  in  the 
county  of  "Warren,  in  the  state  of  New  Jersey  ;  that  on  or 
about  the  14th  of  December,  1854,  the  complainant  applied 
to  him  to  purchase  his  fann  ;  and  that,  after  some  negotia- 
tion, it  was  agreed  between  them,  that  if  the  complainant 
would  purchase  of  J.  Elias  Butz  his  farm,  of  about  the  same 
number  of  acres,  the  defendant  would  exchange  his  farm 


NOVBEMER  TERM,  1855.  40C 

Young  v.  Paul. 

for  the  Butz  farm  and  a  thousand  dollars  difference  ;  that 
at  the  request  of  the1  complainant,  the  defendant  went  to 
consult  his  wife  and  family,  and,  on  returniug,  said  they 
would  all  assent  to  the  arrangement  ;  that  the  complain- 
ant then  went  and  purchased  the  Butz  farm  ;  and  being 
obliged  to  leave  immediately  for  his  home  in  Philadel- 
phia, he  authorized  his  brother,  as  agent  for  him,  to  enter 
into  a  written  agreement  with  the  defendant  for  the  ex- 
change of  farms ;  that  his  brother,  as  his  agent,  and  the 
said  defendant  on  the  same  day,  executed  an  agreement 
in  writing,  by  which  it  was  agreed,  that  on  the  first  day 
of  April,  the  said  complainant  should  convey,  free  and 
clear  of  all  encumbrance,  the  Butz  farm  to  the  defendant, 
and  that  on  the  same  day  the  said  defendant  should  con- 
vey to  the  complainant  the  said  farm  then  owned  and 
occupied  by  the  said  defendant ;  and  further,  that  the  said 
difference  in  exchange  should  be  $1000,  which  the  said 
complainant  agreed  to  pay  to  the  defendant.  The  bill 
alleges  that  the  wife  of  the  defendant  expressed  herself 
satisfied  with  the  agreement ;  that  on  the  first  of  April, 
the  complainant  was  ready  on  his  part  to  fulfil  the  agree- 
ment, and  tendered  to  the  defendant  a  deed  for  the  Butz 
farm,  signed  by  himself  and  wife  with  full  covenants ; 
and  that,  on  the  same  day,  the  defendant  tendered  to  the 
complainant  a  deed  for  his  farm,  but  that  the  deed  was 
not  signed  by  the  wife  ;  that  the  defendant  pretended  his 
wife  could  not  execute  the  deed  ;  that  the  complainant 
then  offered  to  take  the  deed  without  the  wife's  joining 
in  the  conveyance,  provided  the  defendant  would  indem- 
nify him  on  the  Butz  farm  against  any  claim  of  dower 
which  the  wife  of  the  defendant  might  be  entitled  to 
hereafter,  or  by  giving  hirn  other  satisfactory  security. 

The  bill  prays  that  the  said  defendant  may  be  decreed 
specifically  to  perform  the  said  agreement  by  a  proper 
conveyance  with  his  wife,  or  that  he  be  decreed  to  make 
compensation  for  the  value  of  the  wife's  encumbrance,  to 
be  deducted  from  the  purchase  money  ;  or,  if  more  agree- 


404      COURT  OF  ERRORS  AND  APPEALS. 

Young  v.  Paul 

able  to  equity,  that  the  covenants  of  the  defendant  for 
encumbrances  be  declared  a  lien  on  the  Butz  farm,  as 
an  indemnity  against  any  right  or  claim  of  dower  which 
may  hereafter  be  made  by  the  defendant's  wife. 

The  defendant  answered  the  bill,  and  depositions  were 
taken  by  both  parties. 

The  defence  set  up  will  appear  fully  by  the  opinion  of 
the  Chancellor. 

The  cause  was  argued  in  the  Court  of  Chancery,  by  P. 
Kennedy  and  W.  L.  Da/yton^  for  the  complainant,  and  J. 
H.  Norton  and  James  S.  Nemus  for  defendant. 

At  the  term  of  February,  1855,  a  decree  was  made  in 
favor  of  the  complainant.  From  this  decree  an  appeal 
was  taken.  The  Chancellor  furnished  the  court  with  the 
following  opinion,  as  containing  the  reasons  for  his  de 
cree  : 

THE  CHANCELLOR.  There  are  several  grounds  upon  which 
the  defendant  resists  a  decree  for  specific  performance.  I 
shall  notice  them  in  the  order  in  which  they  were  pre- 
sented on  the  argument. 

1.  It  is  objected  that  the  wife  is  not  a  party  to  the  bill, 
and  that  no  decree  can  be  made  against  her  to  execute 
the  deed,  as  she  is  not  a  party  to  the  suit.  No  decree 
could  be  made  against  her  if  she  were  a  party.  If  she 
had  actually  signed  the  agreement  with  her  husband,  it 
would  have  been  absolutely  void  as  to  her,  and  no  suit  at 
law  or  equity  could  be  maintained  against  her  upon  such 
an  agreement.  A  feme  covert  cannot  make  any  contract, 
either  with  or  without  the  consent  of  her  husband,  ex- 
cept as  to  her  separate  estate,  in  respect  either  to  real  or 
personal  property.  Our  late  statutes  respecting  the  rights 
of  married  women  do  not  affect  this  principle  of  the  com- 
mon law.  Had  she  been  made  a  defendant,  a  demurrer 
as  to  her  would  have  been  sustained.  Worden  et  al  v. 


NOVEMBER  TERM,  1855.  405 

Young  v.  PauL 

Morris  and  Wife  (2  Q.  C.  R.  66) ;  2  Kent  141 ;  12  Mad. 
Ch.  261  ;6  Wend.  13  ;  2  Jac.  &  Walk.  412.  The  necessary 
and  proper  parties  are  therefore  before  the  court. 

2.  That  the  defendant,  on  the  day  specified  in  the 
agreement,  was  ready  to  perform  it,  and  tendered  to  the 
complainant  a  deed  for  his  farm,  which  the  complainant 
refused  to  accept.  The  defendant  was  bound  to  give  to 
the  complainant  a  deed  for  the  farm,  free  and  clear  of  all 
encumbrance.  The  complainant  was  entitled  to  a  deed 
executed  by  the  defendant  and  his  wife.  A  deed  executed 
by  the  defendant  alone  was  not  a  compliance  with  the 
agreement.  The  complainant  was  not  bound  to  take  such 
a  deed.  This  was  the  deed  which  was  tendered  to  him. 
But  it  was  argued  that  the  defendant  run  no  risk  by 
taking  such  a  deed ;  that  this  being  a  mere  exchange  of 
properties,  a  court  of  equity  would  not,  under  the  circum- 
stances, ever  have  permitted  the  wife  to  claim  her  dower 
in  both  properties.  But  why  not  ?  The  court  could  not, 
upon  any  principle  of  equity,  prevent  her  taking  her 
dower  in  the  land  conveyed  by  her  husband  to  the  com- 
plainant. It  is  that  very  right  which  she  is  now  main- 
taining, and  which  it  is  contended  this  court  has  no  right 
to  impair  by  a  decree  against  her  in  this  case.  Suppose 
she  claimed  her  dower,  too,  in  the  land  conveyed  by  this 
complainant  to  her  husband.  That  would  be  a  question 
between  her  and  the  heirs  at  law  of  her  husband,  in  which 
this  complainant  could  have  no  possible  interest ;  and  it 
is  difficult  to  conceive  how  any  legal  or  equitable  resist- 
ance could  be  made  to  such  a  claim  by  reason  of  anything 
connected  with  this  transaction.  It  was  further  said,  that 
the  deed  was  a  substantial  compliance  with  the  agree- 
ment, because  it  contained  a  covenant  to  indemnify  the 
complainant  against  any  future  claim  the  wife  might 
make  ;  and  it  is  shown  that  the  defendant  is  a  man  of  pro- 
perty, and  his  personal  covenant  a  sufficient  indemnity. 
This  is  no  answer  to  the  objection  to  such  a  deed.  The 
complainant  offers  to  take  a  sufficient  indemnity,  but  no 


406         COURT  OF  ERRORS  AND  APPEALS. 

Young  v.  Paul. 

court  would  say  that  the  mere  personal  covenant  was 
sufficient  indemnity  against  such  an  encumbrance. 

3.  A  want  of  mutuality  in  the  contract,  is  urged  as  an 
objection  against  a  decree.  It  is  said,  the  agent  who 
signed  the  contract  for  the  complainant  was  not  legally 
authorized,  and  so  the  defendant  only  was  bound  by  it ; 
and  as  the  defendant  could  not,  for  that  reason,  compel  a 
specific  performance  by  the  complainant,  the  parties  were 
not  mutually  bound,  and  that  in  such  a  case  a  court  of 
equity  will  not  decree  a  specific  performance.  There  is 
some  conflict  of  authority  upon  this  point.  It  was  con- 
sidered by  the  court  in  the  case  of  Lanning  v.  Cole  (3  G. 
C.  J?.  229),  and  some  of  the  authorities  are  there  referred 
to  by  the  Chancellor.  It  is  evident  his  leaning  was  against 
the  objection.  He  did  not  decide  the  point,  however,  as 
the  case  turned  upon  the  other  considerations.  Most  of 
the  authorities  on  the  point  are  referred  to  and  reviewed 
by  the  master  of  the  rolls  in  Morris  v.  Mitchell,  (2  Jac.  & 
'Walk.  425).  The  opinion  of  the  master  of  the  rolls  in  that 
case  is  unsatisfactory.  It  is  not  referred  to  by  Chancellor 
Kent  in  Benedict  v.  Lynch  (1  J.  C.  R.  373),  although  much 
later  than  any  of  the  authorities  referred  to  by  him.  The 
contract  is  undoubtedly  binding  on  the  defendant  at  law  ; 
and  if  the  court  refuses  to  compel  a  specific  performance, 
it  is  simply  on  the  ground  that  the  want  of  mutuality 
renders  it  more  equitable  that  the  party  should  be  left  to 
his  legal  remedy. 

It  is  no  legal  unyielding  obstacle  to  the  court's  making 
a  decree,  that  the  contract  is  signed  only  by  one  of  the 
parties.  In  that  sound  legal  discretion,  by  which  a  court 
of  equity  exercises  this  branch  of  its  jurisdiction,  it  fre- 
quently does  refuse  to  decree  a  specific  performance  of  a 
contract  which  is  not  mutually  binding  on  both  parties ; 
not,  however,  because  it  is  a  settled  principle  that  the 
court  will  not  enforce  such  a  contract,  but  because  that 
want  of  mutuality  often  constitutes  an  equitable  ground 
for  such  refusal,  as  if  the  party  not  signing  the  agrre- 


NOVEMBER  TERM,  1855.  407 

Young  v.  Paul. 

ment,  and  therefore  not  legally  bound,  takes  advantage 
of  his  position,  and  delays  its  fulfilment  till  it  is  ascer- 
tained whether  the  bargain  is  advantageous  to  him.  Now, 
though  the  performance  of  the  contract,  if  he  had  been 
bound,  could  not  have  been  resisted  by  reason  of  the  delay, 
yet  the  court  will  now  consider  it  good  ground  enough 
by  reason  of  the  want  of  mutuality  in  the  contract.  But 
even  admitting  that,  as  a  general  rule,  the  objection  is  a 
good  one,  there  are  circumstances  in  this  case  which 
would  make  it  inequitable  and  oppressive  on  the  com- 
plainant for  the  court  to  enforce  it.  It  is  proved,  and  in- 
deed admitted  by  the  answer,  that  the  complainant  pur- 
chased the  Sutz  farm  for  the  sole  purpose  of  carrying  out 
this  contract,  and  that  he  was  encouraged  and  urged  by 
the  defendant  to  make  the  purchase.  He  has  made  a 
large  expendiiure  there,  relying  upon  the  good  faith  of 
the  defendant.  To  turn  him  over  to  the  law  under  these 
circumstances  would  not  only  give  him  an  inadequate 
remedy,  but  be  permitting  the  defendant  to  practice  a 
fraud  upon  him.  The  naked  question  is  not  therefore 
presented  in  this  case,  whether  a  want  of  mutuality  is  a 
valid  objection  against  the  court's  decreeing  a  specific 
performance.  The  conduct  of  the  defendant  has  been 
such  as  to  deprive  him  of  the  benefit  of  the  principle,  if, 
as  a  general  one,  it  is  recognized  in  equity.  The  com- 
plainant brings  himself  within  the  language  of  Lord 
Redesdale,  in  Lawrenson  v.  Butler  (1  Schoalc-s  &  Lefroy 
19),  a  case  always  cited  to  sustain  the  objection  under  con- 
sideration. The  complainant,  on  the  faith  of  this  agree- 
ment, has  put  himself  in  a  situation  from  which  he  could 
not  extricate  himself.  That  circumstance  is  sufficient  to 
induce  a  court  of  equity  to  give  relief. 

4.  The  principal  ground  upon  which  a  decree  is  resisted 
is,  that  when  the  agreement  was  entered  into,  the  defend- 
ant supposed  that  his  wife  would  execute  the  deed ;  but 
since  she  has  resisted  all  Ins  reasonable  persuasions,  and 
(by  her  refusal)  it  is  rendered  impossible  for  him  to  per- 


408   COURT  OF  EERORS  AND  APPEALS. 

Young  v.  PauL 

form  his  contract,  the  court  ought  not,  under  such  circum- 
stances, to  make  a  decree  against  him  to  do  that  which  is 
out  of  his  power  to  do. 

In  examining  the  evidence  of  the  case,  it  is  impossible 
to  resist  the  conclusion,  that  the  defendant  has  acted  in 
bad  faith  in  this  transaction,,  and  that  the  unwillingness 
and  refusal  of  the  wife  to  execute  the  deed  is  more  in 
compliance  with  the  wishes  of  her  husband  than  her  own 
disposition  and  unrestrained  judgment.  There  is  enough 
evidence  to  show  that  the  complainant  was  unwilling  to 
enter  into  the  contract  until  the  wife  of  the  defendant 
was  first  consulted,  and  gave  her  assent;  and  that,  not- 
withstanding the  denial  in  the  answer,  she  did  assent  to 
the  contract.  She  gave  her  reasons  why  she  considered 
the  bargain  an  advantageous  one  to  herself  and  husband. 
It  is  proved  that  the  defendant  declared  his  determination 
to  back  out,  as  he  expressed  it.  His  position  is  not  one  to 
ask  any  favor  of  the  court,  or  to  give  him  the  benefit  of  a 
doubtful  principle  to  which  fair  and  upright  dealing  might 
justly  lay  a  claim. 

But  the  fact  is,  the  wife  now  refuses  to  execute  the  deed ; 
and  it  is  necessary  to  its  validity  that  she  should  sign  it, 
and  acknowledge,  before  the  proper  officer,  that  she 
signed,  sealed,  and  delivered  it  as  her  voluntary  act  and 
deed  freely,  without  any  fear,  threats,  or  compulsion  of 
her  husband.  If  the  court  decrees  a  specific  perform- 
ance according  to  the  terms  of  the  contract,  the  husband 
must  procure  his  wife  to  sign  the  deed  in  some  way,  per 
fas  aut  nefas,  or  else  take  the  consequences  of  disobedi- 
ence to  the  order  of  the  court.  This  then  is,  in  effect,  a 
decree  by  which  the  wife  is  forced  into  executing  a  deed. 
"When  she  is  brought  before  the  proper  officer,  he  certifies 
to  her  acknowledgment  of  its  being  her  free  and  voluntary 
ach,  when  it  is  notorious  that  it  is  the  decree  of  this  court, 
held  up  to  her  in  terrorem,  which  must  be  either  obeyed 
by  her  husband  through  her  submission,  or  he  be  sub- 
jected to  punishment  for  disobedience.  Such  a  decree  is 


NOVEMBER  TERM,  1855.  409 

Young  v.  Paul. 

against  the  policy  of  the  law  protecting  the  rights  of  a 
wife  in  the  lands  of  her  husband.  It  is  plain  to  be  seen 
that  this  mode  of  alienation  might  be  adopted  by  an  im- 
provident and  oppressive  man  to  strip  a  prudent  wife  of 
all  the  reliance  for  her  future  support.  Her  refusal  to 
sign  a  deed  would  be  easily  overcome  by  her  husband  en- 
tering into  a  contract  that  she  shall  join  him  in  a  convey- 
ance ;  and  then  a  decree  of  this  court  is  looked  to  as  the 
instrument  of  her  oppression.  She  may  have  firmness 
enough  to  resist  his  unreasonable  demand  and  entreaties, 
but  yield  to  the  persuasion  of  a  decree  of  this  court, 
which  threatens  her  continued  refusal  with  the  incarcera- 
tion of  her  husband.  Upon  an  examination  of  the  au- 
thorities, it  will  be  found  that  the  doctrine  is  not  ag 
firmly  established  as  a  cursory  view  of  them  might  lead  us 
to  suppose. 

Judge  Story  (Story's  Eq.  732)  pointedly  and  emphati- 
cally condemns  the  doctrine,  that  a  court  of  equity  will 
decree  the  specific  performance  of  an  agreement,  by  which 
the  husband  covenants  that  his  wife  shall  execute  a  con- 
veyance to  bar  her  of  her  estate,  when  performance  is 
resisted  on  the  ground  of  the  wife's  refusal  to  join  in  the 
deed.  The  authorities  are  referred  to ;  but  the  author 
does  not  give  his  opinion  whether  they  are  such  as  should 
lead  to  the  conclusion  that  the  doctrine  should  be  considered 
as  settled  by  authority  either  way. 

The  case  of  Hatt  v.  Hardy  (3  P.  Wms.  185-6)  was  a  bill 
for  the  specific  performance  of  an  award,  by  which  the 
plaintiff  was  to  pay  £10  to  the  defendant  on  such  a  day; 
and  £30  at  another  day ;  and  that  thereupon  the  defend- 
ant should  procure  his  wife  to  join  with  him  in  conveying 
the  premises  to  the  plaintiff  and  his  heirs.  The  answer 
did  not  set  up  the  refusal  of  the  wife.  The  master  of  the 
rolls  says,  "  there  have  been  a  hundred  precedents,  where, 
if  the  husband  for  a  valuable  consideration  covenants  that  the 
wife  shall  join  with  him  in  a  fine,  the  court  has  decreed  the 
husband  to  do  it,  for  that  he  has  undertaken  it,  and  must 

VOL.  ii.  2  M 


410       COUET  OF  ERRORS  AND  APPEALS. 

Young  v.  Paul. 

lie  by  it,  if  be  does  not  perform  it."  And  yet  the  note  to 
this  very  remark  of  the  master  of  the  rolls  (note  12,  page 
188,)  leaves  it  quite  uncertain  as  to  the  extent  to  which 
these  hundred  precedents  carried  the  doctrine ;  "  because  in 
all  these  cases  it  is  to  be  presumed  that  the  husband,  where 
he  covenants  that  his  wife  shall  levy  a  fine,  has  first 
gained  her  consent  for  that  purpose.  So  said  by  the  mas- 
ter of  the  rolls  in  the  case  of  Winter  v.  Devereux,  Trinity, 
1723 ;  and  that  the  interest  in  such  covenants  has  been 
taken  to  be  an  inheritance  descending  to  the  heir  of  the 
covenantee.  JSut,  after  all,  if  it  can  be  made  appear  to 
have  been  impossible  for  the  husband  to  procure  the  concur- 
rence of  his  wife  (as  suppose  there  are  differences  between 
them),  surely  the  court  would  not  decree  an  impossibility, 
especially  wrhere  the  husband  offers  to  return  all  the  money, 
with  interest  and  costs,  and  to  answer  all  the  damages." 
(Note  B,  referred  to).  But  here  is  the  very  point  we  want 
precedent  for — the  court's  making  a  decree  for  the  de- 
fendant to  do  an  impossibility — to  control  the  will  of  his 
wife  and  compel  her  voluntarily  to  execute  a  deed  ;  for  the 
deed  is  worthless,  except  done  of  her  free  will.  There  is 
no  difficulty  where  the  defendant  does  not  set  up  the  refu- 
sal of  his  wife  as  a  defence.  But  where  the  refusal  is  set 
up  as  a  defence,  and  it  appears  by  the  evidence  that  such 
refusal  is  the  reason  why  the  defendant  does  not  perform 
his  covenant,  for  this  court  to  make  a  decree  which  com- 
pels the  wife  to  execute  a  deed,  and  then  to  accept  it  as  a 
free  will  offering,  is  carrying  the  jurisdiction  of  the  court 
very  far. 

The  case  of  Barry  v.  Wade  (Rep.  Temp.  Finch  180)  I 
have  not  seen ;  but  the  book  is  admitted  not  to  be  very 
reliable  authority.  In  Barrington  v.  Stone  (2  Eq.  Abridg. 
17,  pi.  8,)  the  decree  was,  that  the  husband  should  pro- 
cure his  wife  to  join  with  him  in  a  fine  to  the  plaintiff,  ac- 
cording to  his  covenant.  The  answer  set  up  that  the  wife 
did  not  seal  the  deed,  but  not  her  refusal  to  join  with  her 
husband  in  a  fine. 


NOVEMBER  TERM,  1855.  411 

Young  v.  Paul. 

In  Otread  v.  Round  (4  Yin.  Ab.  202,  pi.  4,)  Lord  Cowper 
refused  to  decree  a  specific  performance  of  such  a  cove- 
nant, the  husband  offering  to  refund  the  purchase  money 
with  costs.  The  case,  as  cited  in  Yiner,  is  as  follows : 
"  Husband  and  wife  did,  upon  a  valuable  consideration, 
by  lease  and  release,  convey  the  wife's  land  in  fee,  and 
covenanted  that  the  wife  should  levy  a  fine  of  the  same 
to  the  use  of  the  purchaser.  The  wife  refused  to  levy  a 
fine.  The  plaintiff  brought  his  bill  to  have  his  title  per- 
fected by  a  specific  performance  of  the  covenant,  and  a 
precedent  was  cited  where  a  specific  performance  had 
been  decreed  in  the  like  case  ;  but  the  Chancellor  would 
not  decree  a  specific  performance  in  this  case,  because 
upon  such  decree  the  husband  could  not  compel  his  wife 
to  levy  a  fine ;  and  if  she  would  not  comply,  imprison- 
ment would  fall  upon  the  husband  for  contempt,  which 
was  the  ill  consequence  of  the  decree  in  the  said  cited 
case." 

In  Emery  v.  Ware  (8  Yes.  505),  Lord  Eldon  refuses  his 
assent  to  the  doctrine  carried  to  the  extent  of  the  court's 
making  the  decree  in  the  face  of  the  refusal  of  the  wife  ; 
and  in  Martin  v.  MitcheU  (%Jac.  cfe  Walk.  418),  Sir  Thomas 
Plumer,  master  of  the  rolls,  decides  these  points  :  that  a 
husband  and  wife,  having  a  joint  power  of  appointment 
by  deed  over  the  wife's  estate,  agree  in  writing  to  sell  it, 
a  decree  for  specific  performance  cannot  be  compelled 
against  them ;  and  under  a  contract  by  husband  and  wife 
for  sale  of  the  wife's  estate,  the  court  will  not  decree  him 
to  procure  her  to  join.  He  remarks,  "  the  point,  that  the 
(•.ourt  should  compel  the  husband  to  coerce  the  wife  to 
join  with  him  in  the  conveyance,  was  abandoned.  The 
counsel  did  not  urge  that  that  is  the  law  now,  and  that 
the  husband  was  to  go  to  prison,  if  she  refuses  to  concur." 

Upon  a  careful  examination  of  all  the  authorities,  if  the 
alternative  were  presented  to  me  of  making  a  decree  for 
specific  performance  by  procuring  the  wife  to  join  in  the 
deed,  or  to  dismiss  this  bill,  I  should  accept  the  latter. 


412       COUKT  OF  ERROES  AND  APPEALS. 

\ 

Young  v.  Paul. 

I  am,  however,  relieved  in  this  case  from  denying  the 
complainant  relief  on  account  of  any  such  embarrassment. 
The  complainant  offers  by  his  bill,  in  case  of  the  refusal 
of  the  defendant's  wife  to  join  in  the  deed,  to  take  indem- 
nity. The  power  of  the  court  to  direct  indemnity  is  denied. 
The  case  eminently  calls  for  its  exercise,  and  I  do  not  think 
it  can  be  denied  upon  authority  or  principle. 

In  the  case  of  Milligan  v.  Cooke  (16  Yes.  1),  for  the 
plaintiff  it  was  stated,  that  he  desired  not  a  reduction  of 
the  purchase  money,  but  an  indemnity  against  the  risk, 
which  must  not  be  a  personal  indemnity,  but  upon  real 
estate,  or  by  part  of  the  purchase  money  to  be  kept  in 
court,  the  defendant  taking  the  dividends.  Lord  Eldon 
said  the  purchaser  was  entitled  to  that ;  that  the  proper 
compensation  was  indemnity,  by  which  the  loss,  if  it 
should  happen,  would  be  made  good,  and  if  it  did  not 
happen,  there  was  no  occasion  for  compensation.  A  refer- 
ence was  made  to  a  master  to  settle  such  security  by  way 
of  indemnity,  as,  under  all  the  circumstances  of  the  title, 
it  should  appear  just  and  reasonable  that  the  defendant 
should  execute.  Upon  an  intimation  of  the  Lord  Chan- 
cellor, the  case  was  reargued,  and  the  decree  was  affirmed. 
I  cannot  find  that,  by  any  subsequent  case,  the  propriety  of 
this  decision  of  Lord  Eldon  has  been  questioned. 

In  Balamanno  v.  Luinley  (1  V.  &  B.  224),  Lord  Eldon 
confined  the  order  to  compensation,  and  is  reported  to 
have  said  he  did  not  apprehend  the  court  could  compel 
the  purchaser  to  take  an  indemnity,  or  the  vendor  to  give 
it.  He  certainly  did  not  mean  to  question  the  correctness 
of  the  principle  upon  which  he  had  made  the  decree  in 
J^fiUigan  v.  Cooke.  The  manner  in  which  both  those  cases 
are  referred  to,  in  a  note  to  Patton  v.  Brebner  and  anot/ier, 
(1  Bligh  67)  shows  that  they  were  not  considered  in  con 
flict,  or  that  the  latter  overruled  the  former;  but  that, 
while  it  is  a  general  rule  that  courts  of  equity  will  not 
compel  a  vender  to  give  an  indemnity,  there  is  no  inflexi- 
ble rule  or  principle  to  prevent  the  court's  doing  it  when 


NOYEMBEK  TERM,  1855.  413 

Young  v.  Paul. 

a  proper  case  presents  itself.  If  there  is  anything  in  the 
reasoning,  that  a  court  of  equity  cannot,  upon  principle, 
decree  an  indemnity  because  the  parties  have  not  con- 
tracted for  it,  it  would  equally  apply  against  the  jurisdic- 
tion of  the  court  to  award  compensation  for  any  deficiency 
in  the  title,  quantity,  quality,  description,  or  other  matters 
touching  the  estate.  In  Graham  v.  Oliver  (3  Bea/o.  124), 
Lord  Langdale  says:  "  There  is,  however,  a  very  great 
difficulty  in  all  these  cases,  and  I  scarcely  know  how  it 
can  be  overcome ;  though  a  partial  performance  only,  it 
has  been  somewhat  incorrectly  called  a  specific  perform- 
ance. The  sentiments  of  Lord  Redesdale  on  this  point, 
as  expressed  by  him  in  two  cases  before  him,  are  strongly 
impressed  on  my  mind.  The  court  has  thought  it  right, 
in  many  cases,  to  get  over  these  difficulties  for  the  pur- 
pose of  compelling  parties  to  perform  the  agreements  into 
which  they  have  entered  ;  and  it  is  right  they  should  be 
compelled  to  do  so,  where  it  can  be  done  without  any 
great  preponderance  of  inconvenience." 

In  the  case  before  the  court,  if  it  is  beyond  the  reach 
of  its  jurisdiction  to  decree  indemnity,  then  it  has  not  the 
power  to  do  what  is  manifestly  equitable  and  just  between 
the  parties  to  this  contract,  and  the  complainant  must 
submit  to  a  fraud  without  any  adequate  means  of  redress. 
Indemnity  can  be  ordered  in  this  case,  not  only  "  without 
any  great  preponderance  of  inconvenience,"  but  without 
any  inconvenience  at  all.  As  the  case  is  presented,  it  is, 
the  very  remedy  which  suggests  itself  as  the  proper  and1 
natural  mode  of  administering  equity  between  the  parties, 
and  is  free  from  every  objection  as  to  hardship  or  incon- 
venience. The  defendant  need  not  be  called  upon  to  give 
collateral  indemnity,  but  it  may  be  obtained  in  settling  the 
mutual  conveyances  to  be  made  between  the  parties. 

By  the  terms  of  the  agreement,  the  complainant  is  to 
convey  to  the  defendant  the  Butz  farm,  and  pay  him  one 
thousand  dollars,  as  the  consideration  for  the  premises 
which  the  defendant  has  agreed  to  convey  to  the  com- 

2u* 


414      COUET  OF  EEEOES  AND  APPEALS. 

V      . 

Young  v.  PauL 

plainant.  The  wife  of  the  defendant  refuses  to  unite  with 
her  husband  in  the  conveyance  ;  and  this  refusal  is  owing 
entirely  to  the  contrivance  and  fraud  of  the  defendant, 
who,  in  this  way,  is  endeavoring  to  deprive  the  complain- 
ant of  the  benefit  of  a  specific  performance  of  the  con- 
tract. The  court  should  order  this  agreement  performed, 
and  the  conveyances  to  be  so  made  between  the  parties 
that  the  complainant  may  hold  in  the  land  which  he  con- 
veys an  indemnity  against  any  future  claim  to  be  set  up 
by  the  defendant's  wife. 

I  shall  decree  a  specific  performance  and  a  reference 
to  a  master,  with  directions  to  settle  the  conveyances ;  and 
if  the  wife  of  the  defendant  refuses  to  join  her  husband 
in  a  deed,  then  to  direct  the  conveyances  in  such  a  manner 
as  will  afford  the  complainant  a  complete  indemnity  in 
the  premises. 

The  appeal  was  argued  by 
Bradley  and  Nemus,  for  appellant. 
Browning  and  Dayton,  for  respondent. 

The  following  opinions  were  now  delivered. 

POTTS,  J.  I  am  of  opinion  that  the  decree  of  the  Chan- 
cellor, in  this  case,  should  be  affirmed.  It  does  substantial 
justice  between  the  parties,  and  this  is  the  great  end  of 
equity. 

I  see  nothing  in  the  evidence  to  impugn  the  fairness  of 
the  contract.  Mr.  Young  had  all  the  time  for  .considera- 
tion that  he  required.  He  acted  voluntarily.  He  was  well 
acquainted  with  the  subject  matter  in  respect  to  which  he 
was  dealing  ;  he  knew  the  value  of  his  own  farm,  and  of 
the  one  he  agreed  to  take  in  exchange  for  it.  The  one 
thousand  dollars  difference  was  the  sum  proposed  by  him- 
self. 

There  is  no  doubt  his  wife  assented  to  the  sale  in  the 
first  instance.  It  was  not  until  some  time  afterwards  that 


COURT  OF  ERRORS  AJSD  APPEALS.   415 

Young  v.  Paul. 

slie  changed  her  mind,  and  determined  not  to  execute  the 
deed ;  whether  this  was  of  her  own  volition,  or  brought 
about  by  the  influence  of  her  husband,  makes  no  difference. 
The  decree  in  no  way  impairs  or  affects  her  rights. 

The  controlling  equity  of  the  appellee's  case  is,  that 
upon  the  faith  of  his  agreement  with  Young,  he  was  drawn 
into  the  purchase  of  the  Butz  farm,  and  was  thus  placed 
in  a  position  from  which  he  could  not  extricate  himself. 
He  bought  that  farm,  not  for  himself — he  did  not  want 
it — -but  for  Mr.  Young.  That  was  distinctly  understood 
beforehand  by  Mr.  Young.  The  appellee  has  that  farm 
upon  his  hands,  and  a  court  of  law  cannot  relieve  him 
from  it. 

The  decree  made  by  the  Chancellor  meets  and  satisfies 
the  equity  of  the  case.  It  directs  performance  only  so  far 
as  the  appellant  is  able  to  perform — a  conveyance  of  the 
Young  farm  free  of  the  encumbrance  of  the  wife's  dower, 
if  she  chooses  voluntarily  to  join  her  husband  in  the  con- 
veyance ;  subject  to  the  encumbrance,  if  she  declines  to  do 
so ;  and  in  the  last  alternative  directs  indemnity  to  be  made 
by  Young  out  of  the  one  thousand  dollars  and  the  Butz 
farm. 

The  objection  taken  is  to  the  indemnity. 

Batten,  in  his  recent  treatise  on  the  law  of  specific  per- 
formance, 67  Law  Lib.  171,  says,  "  the  court  will  not  com- 
pel a  purchaser  to  take  an  indemnity,  nor  a  vendor  to  give 
it ;  and  he  cites,  as  his  authority,  the  cases  of  Balamanno  v. 
Lumley,  Aylett  v.  Ashton,  and  Patten  v.  Brabner. 

Balamanno  v.  Lumley,  1  Ves.  &  Beam.  224,  is  the  lead- 
ing case.  It  was  a  bill,  by  the  vendee,  for  specific  perform- 
ance of  a  contract  for  the  purchase  of  an  estate.  The  title 
was  alleged  to  be  defective,  and  the  purchaser  moved  for  a 
reference  to  look  into  the  title,  and,  if  found  defective,  to 
settle  the  proper  compensation  or  indemnity,  his  counsel 
suggesting  that,  as  to  part  of  the  estate,  indemnity  might 
be  more  convenient  than  compensation.  The  vendor's 
counsel  objected  to  indemnity,  which,  he  said,  might 


416      COURT  OF  ERROES  AND  APPEALS. 

Young  v.  Paul. 

prove  inconvenient  to  families ;  and  Lord  Eldon  said  "  lie 
did  not  apprehend  the  court  would  compel  t/te  purchaser  to 
take  an  indemnity,  or  the  vendee  to  give  it"  and  according- 
ly confined  the  order  to  compensation.  This  is  the  whole 
case. 

Aylett  v.  Ashton,  1  Mylne  <&  Craig  105,  was  a  bill  for 
the  specific  performance  of  a  contract  for  a  lease.  The  con- 
tract was  entered  into  by  the  wife  alone,  and  in  respect  to 
her  separate  property.  It  turned  out  that,  as  to  part  of  the 
premises,  she  had  no  title.  The  bill  was  against  her  and 
her  husband.  The  court  held  that  there  was  no  jurisdiction 
to  make  a  decree  against  the  wife,  her  trustees  not  being 
parties,nor  against  the  husband,he  not  having  signed  the  con- 
tract ;  and  the  master  of  the  rolls  merely  added,  at  the 
close  of  his  opinion,  that  "  parties  may,  no  doubt,  contract 
for  a  covenant  of  indemnity  ;  but  if  they  do  not,  the  court 
cannot  compel  a  party  to  execute  a  conveyance  and  to  give 
an  indemnity,  "referring,  as  authority,  to  Balamanno  v. 
iMmley  and  Patten  v.  Brebner,  in  which  last  case,  reported 
in  1  JBligh  66,  Lord  Eldon  merely  refers  to  the  rule,  as 
stated  in  the  former  case. 

On  the  other  hand,  in  the  case  of  Milligan  v.  Cooke,  16 
Vesey  1,  Lord  Eldon,  after  two  arguments  and  upon  full 
consideration,  held  that  that  was  a  case  for  compensation, 
and  that  the  proper  compensation  was  indemnity ;  for  by 
this,  he  said,  the  loss,  if  it  happened,  would  be  made  good, 
and  if  it  did  not  happen,  there  was  no  occasion  for  com- 
pensation. It  was  a  bill  for  specific  performance  brought 
by  the  purchaser  of  a  leasehold  estate.  The  defect  con- 
sisted in  the  representation  by  the  particular  of  a  church 
lease  for  twenty-one  years,  with  covenants  for  renewals  to 
sixty-three  years,  the  lease  being  actually  for  lives,  and  the 
covenants  limited  and  contingent.  The  consequent  uncer- 
tainty whether  any  loss  would  occur,  was  the  controlling 
reason,  why  indemnity  was  decreed  instead  of  compensation. 
This  reason  exists  in  the  case  before  us,  and  is,  in  my  judg- 
ment, a  solid  one. 


NOVEMBEE  TEEM,  1855.  417 

Young  i?.  Paul 

Compensation  settled  by  the  Court  of  Chancery,  or 
damages  assessed  at  law,  might  do  great  injustice,  if  the 
wife  should  not  survive  her  husband,  to  the  vendor,  if  she 
should  survive  him  very  many  years,  to  the  vendee,  while 
indemnity  would  do  certain  justice.  As  to  its  being  an  in- 
convenience to  Mr.  Young,  it  will  always  be  in  the  power 
of  the  wife  to  remove  the  inconvenience  by  perfecting  the 
title. 

It  is  said,  if  Young  refuses  to  comply  with  the  direc- 
tions of  the  decree  of  the  Chancellor,  and  is  committed 
for  contempt,  that  will  operate  to  compel  the  wife  to  join 
in  executing  the  deed ;  and  that  this  is  against  principle. 
But  there  would  be  no  more  compulsion  in  this  than  there 
woull  be  in  a  decree  that  a  husband  should  pay  a  sum  of 
money,  or  be  in  contempt  for  not  doing  so,  where  the 
wife  might  relieve  him  by  raising  and  paying  the  money 
out  of  her  separate  estate.  If  Young  puts  himself  in  con- 
tempt at  all,  it  will  be  not  because  his  wife  refuses  to  exe- 
cute the  deed,  but  because  he  refuses  to  convey  and  to 
give  indemnity. 

EYERSON,  J.  I  concur  in  affirming  the  decree  of  the 
Chancellor,  being  satisfied  that  the  contract  was  entered 
into  with  fairness  and  good  faith  on  the  part  of  the  com- 
plainant, after  full  advisement  and  deliberation  on  the 
part  of  the  defendant,  having  first  consulted  his  wife,  and 
obtained  her  full  approval  and  consent,  and  that  her  sub- 
sequent refusal  to  join  in  the  conveyance  resulted  from 
his  interference. 

On  the  faith  of  this  contract,  the  complainant  purchased 
the  Butz  farm  and  he  cannot  obtain  adequate  relief  at 
law  in  action  for  damages  which  would  leave  him  with 
that  farm  upon  his  hands,  a  farm  that  he  did  not  want, 
and  purchased  only  to  fulfil  his  contract. 

Justice  can  be  done  in  no  other  way  than  by  the  Chan- 
cellor's decree,  and  it  will  work  no  wrong  to  the  defend- 
ant ;  his  wife  having  once  changed  her  mind  to  aid  him 


418          COURT  OF  ERRORS  AND  A  PPEALS. 

Young  o.  Paul. 

in  the  determination  of  backing  out,  which  he  so  em* 
phatically  expressed,  will  probably  as  readily  change  back 
to  her  first  opinion,  when  he  finds  it  to  be  to  his  interest 
to  do  so,  and  join  with  him  in  the  conveyance  ;  if  she  de- 
clines to  do  this,  her  husband  will  be  subjected  to  no 
other  hardship  than  what  he  has  brought  upon  himself 
by  his  own  misconduct,  and  which  he  should  bear,  rather 
than  deny  adequate  relief  to  the  complainant. 

The  objection  of  want  of  mutuality  has  no  application 
to  this  case,  and  I  am  well  satisfied  that  in  a  proper  case, 
such  as  this  eminently  is,  the  Court  of  Chancery  has 
power  to  decree  indemnity,  and  ought  to  do  it,  rather 
than  allow  the  defendant  to  practise  what  would  be  a 
fraud  upon  the  complainant ;  while  the  rights  of  married 
women  should  be  protected  to  their  full  extent,  a  husband 
ought  not  to  be  allowed  to  avail  himself  of  such  a  plea  in 
a  case  like  this. 

Not  intending  to  write  a  formal  opinion,  it  is  neverthe- 
less proper  to  express  concisely  my  reasons  for  affirming 
the  decree,  lest  this  case  might  be  made  a  precedent  for 
cases  differently  situated,  cases  where  the  wife's  refusal  to 
join  in  the  conveyance  was  lona  fide,  and  not  the  result  of 
the  husband's  interference,  or  cases  where  an  action  for 
damages  would  give  adequate  redress. 

ELMEB,  J.,  concurred  in  the  above  opinion. 

Decision  affirmed  by  the  following  vote  : 
For  affirmance — Judges   COKNELISON,    HAINES,  OGDEST, 
RYEKSON,  ELMER,  HUYLEB,  POTTS,  YEEDENBUEGH. 

For  reversal — CHIEF  JUSTICE,  JUDGES  ARBOWSMTTH,  Ris- 

LEY,  VaLENTINE,  WlLLS. 

CITED  in  Hopper  v.  Hopper,  1  C.  E.  Gr.  149 ;  Hawralty  v.  Warren,  ?  0. 
E.  Gr.  128 ;  Pinner  v.  Sharp,  8  C,  E.  Gr.  282 ;  Reilly  v.  Smith,  10  C.  E. 
Gr.  159  ;  Lounsbery  v.  Locander,  10  G.  £.  Gr.  557 ;  Peeler  v.  Levy,  1  (7. 
E.  Gr.  335. 


NOVEMBER  TERM,  1855. 


Holmes  v.  Stout. 


JOSEPH  HOLMES   and  others,    appellants,    and    BENJAMIN 
STOUT  and  JOHN  WILLIAMS,  respondents. 

To  destroy  the  title  acquired  by  prior  registry,  it  is  necessary  that  the  party 
should  have  notice  of  a  prior  subsisting  outstanding  title.  It  is  not  enough 
that  he  has  notice  that  a  prior  deed  has  been  executed,  if  the  notice  con- 
veys, also,  the  information  that  the  title  is  not  in  existence. 

The  ground  upon  which  the  title  acquired  by  a  prior  registry  of  a  deed  is 
lost,  in  case  of  notice  to  the  second  grantee  of  the  existence  of  the  prior 
conveyance,  is  that  it  is  a  fraud  in  the  second  grantee  to  take  a  deed, 
knowing  or  having  reason  to  suspect  the  existence  of  the  prior  title. 

Unless  the  information  given  concerning  the  existence  of  the  previous  con- 
veyance was  of  such  a  character  as  to  taint  his  conduct  with  fraud,  as 
against  those  claiming  under  the  prior  title,  the  .notice  cannot  affect  the 
validity  of  his  title. 

Possession  is  sometimes  notice  of  claim  of  title  sufficient  to  put  a  purchaser 
on  inquiry;  but  it  must  be  an  actual  possession  manifested  by  notorious 
acts  of  ownership,  such  as  would  naturally  be  observed  by,  and  known  to 
the  public. 

Cutting  wood  occasionally,  under  circumstances  which  might  be  regarded  as 
so  many  trespasses  quite  as  probably  as  acts  of  ownership,  is  not  evidence 
of  such  possession. 

The  grantee  of  a  bona  fide  purchaser  without  notice  is  not  to  be  charged 
with  the  encumbrance  or  fraud,  although  directly  known  to  him  before 
he  acquired  his  title ;  otherwise  the  loss  must  be  visited  upon  the  bona  fide 
purchaser,  as  he  would  thereby  be  obliged  to  keep  the  property  or  to  sell 
it  at  such  a  price  as  would  enable  his  purchaser  to  discharge  the  encum- 
brance or  purge  the  fraud. 


The  case  sufficiently  appears  from  the  opinions  de- 
livered. 

The  cause  was  argued  in  the  Court  of  Chancery,  by 
Peter  Vredenburgh  and  J.  F.  Randolph,  of  counsel  with 
complainants,  and  Daniel  B.  Ttyall  and  Garret  D.  Wall 
of  counsel  with  defendants.  HAINES,  C. 

At  the  term  of  January,  in  the  year  eighteen  hundred 
and  forty-five,  a  decree  was  made  dismissing  the-  com- 
plainants' bill  with  costs.  From  this  decree  an  appeal  was 
taken. 

The  Chancellor  furnished  the  court  with  the  following 
opinion,  as  containing  the  reasons  for  his  decree. 


420      COURT  OF  EEEOES  AND  APPEALS. 

Holmes  v.  Stout. 

•  HAENES,  C.  On  the  twenty-third  of  August,  eighteen 
hundred  and  seventeen,  Andrew  Bell  conveyed  to  John 
Holmes,  jun.,  a  tract  of  land,  of  sixty-four  acres  and  four 
hundredths,  in  the  county  of  Monmouth,  for  one  hundred 
and  nineteen  dollars,  and  took  his  note  for  the  money. 

On  the  tenth  of  December,  eighteen  hundred  and  seven- 
teen, John  Holmes,  jun.,  conveyed  to  John  Holmes,  sen., 
twenty-two  acres,  parcel  of  the  lot  of  sixty-four  acres  and 
four  hundredths,  for  fifty  dollars. 

On  the  twenty-seventh  day  of  August,  eighteen  hun- 
dred and  twenty-seven,  John  Holmes,  jun.,  represented 
to  Mr.  Bell  that  he  had  lost  his  deed,  and  that  it  had  not 
been  recorded,  and  urged  him  to  make  out  a  new  deed 
for  the  sixty-four  acres  and  four  hundredths  of  an  acre 
lot  to  his  brother-in-law,  Eichard  Lane.  Mr.  Bell  at  that 
time  declined  making  a  new  deed  ;  but  on  the  next  day, 
Holmes,  jun.,  and  Lane  called  upon  him,  and  urged  him 
till  he  was  induced  to  execute  to  Lane  a  new  deed  for  the 
premises,  dated  the  twenty-eighth  of  August,  eighteen 
hundred  and  twenty-seven  ;  and  Lane  then  paid  Mr.  Bell 
sixty  dollars  on  Holmes'  note.  Part  of  the  money  due  on 
the  note  still  remains  unpaid.  The  deed  was  recorded  on 
the  seventeenth  of  September,  eighteen  hundred  and 
twenty-seven. 

In  eighteen  hundred  and  thirty,  Lane  died  intestate, 
and  his  administrators,  by  virtue  of  an  order  of  the  Or- 
phans Court,  sold  and  conveyed  the  whole  premises  to 
Stout  and  Williams,  the  defendants,  by  deed  dated  the 
seventh  of  November,  eighteen  hundred  and  thirty-two, 
and  recorded  on  the  twenty-fourth  day  of  November, 
eighteen  hundred  and  thirty-two.  The  deed  from  John 
Holmes,  jun.,  to  John  Holmes,  sen.,  was  not  recorded  until 
after  the  execution  of  the  administrators'  deed  to  Stout  and 
Williams. 

The  complainants,  claiming  under  John  Holmes,  jun., 
now  file  their  bill,  and  seek  a  perpetual  injunction,  to  quiet 
their  title,  and  to  set  aside  so  much  of  the  deed  from  Bell 


NOVEMBER  TERM,  1855.  421 


Holmes  v.  Stout. 


to  Lane  as  covers  the  twenty-two   acres  before  conveyed 
to  John  Holmes,  sen. 

From  the  testimony  in  the  case,  Lane  appears  to  have 
been  a  purchaser  for  a  valuable  consideration,  and  as  his 
deed  was  duly  recorded  before  the  deed  from  John  Holmes, 
jun.,  to  John  Holmes,  Sen.,  his  claim  to  the  premises  is  to 
be  preferred,  unless  it  can  be  shown  that  he  purchased 
mala  fide,  or  with  notice  of  the  deed  to  John  Holmes,  sen. 
Act  of  1th  June,  1799,  §  8,  P.at.  399. 

It  is  not  enough  to  show  that  he  had  notice  of  the  deed 
from  Mr.  Bell  to  John  Holmes,  jun.  Lane  purchased  of 
Holmes,  jun.,  and  whether  the  conveyance  was  made  by 
Holmes  or  Bell,  was,  as  between  them,  immaterial. 

There  is  no  proof  of  actual  notice  to  Lane,  nor  of  any 
constructive  notice,  unless  it  be  under  the  allegation  of 
possession  of  the  premises  by  Holmes,  sen.  Possession  is 
sometimes  notice  of  claim  of  title  sufficient  to  put  a  pur- 
chaser on  inquiry ;  but  it  must  be  an  actual  possessions 
manifested  by  notorious  acts  of  ownership,  such  as  would 
naturally  be  observed  by  and  known  to  the  public. 

In  this  case  there  is  no  evidence  of  such  possession. 
The  premises  consist  of  unenclosed  woodland,  except  about 
two  acres,  which  are  included  within  the  enclosure  of  an 
adjoining  tract  of  forty-five  acres.  Upon  it  John  Holmes, 
sen.,  occasionally  cut  wood,  which  cutting,  under  the  cir- 
cumstances, would  be  regarded  as  so  many  trespasses 
quite  as  probably  as  acts  of  ownership. 

As  to  possession  being  notice,  see  Daniels  v.  Davison, 
16  Yes.  249  ;  Taylor  v.  Stillert,  2  Yes.  440;  Smith  v.  Low, 
\  Atkyns  490 ;  Allen  v.  Anthony,  \  Merivale  282  ;  2  Fonb. 
f/j.  B.  2,  ch.  6,  §  3;  and  note  (m)  ;  Hanbury  v.  Litchfield,  2 
Nylne  &  Keene  629,  632-3  ;  Flagg  v.  Mann,  Sumner's 
R.  486,  554,  555. 

If  Lane,  then,  were  a  l)onafid<-  purchaser  without  notice* 
the  sale  to.  the  defendants  by  the  administrators  may  be 
good,  even  though  the  defendants  had  such  knowledge 
and  notice  of  all  the  circumstances  of  the  case.  For  it  is 

VOL.  IL  2  N 


422    COUBT  OF  EEEOES  AND  APPEALS. 

Holmes  v.  Stout. 

well  settled  as  a  general  rule,  that  the  grantee  of  a  ~bona 
fide  purchaser  without  notice  is  not  to  be  charged  with 
the  encumbrance  or  fraud,  although  directly  known  to 
him  before  he  acquired  his  title ;  otherwise  the  loss  must 
be  visited  upon  the  bonafide  purchaser,  as  he  would  there- 
by be  obliged  to  keep  the  property,  or  to  sell  it  at  such 
price  as  would  enable  his  purchaser  to  discharge  the  en- 
cumbrance or  purge  the  fraud.  Harrison  v.  Forth,  free, 
in  Ch.  51 ;  2  Fonb.  Eq.  B.  2,  oh.  6,  §  2 ;  Lowther  v.  Carlton, 
2  Atk.  24:2  ;  Ferrars  v.  Cherry,  2  Vern.  383  ;  Mertins  v.  Jol 
life,  Amb.  fi.  313 ;  Sweet  v.  Southcot,  2  Brown's  Ch,  JR.  66  } 
McQueen  v.  Farquhar,  11  Ves.  477-8  ;  Ingrain,  v.  Pelham 
et  al.,  Amb.  153  ;  Alexander  v.  Pendleton,  8  Cranch  462  ; 
Fitzsimmons  v.  Ogden,  7  Cranch  2. 

In  this  view  of  the  case,  it  is  unnecessary  to  inquire 
into  the  alleged  notice  to  the  defendants.  The  bill  must 
be  dismissed  with  costs. 

The  appeal  was  argued  at  June  term,  1855,  by  Joel 
Parker  and  J.  F.  Randolph,  of  counsel  with  appellants, 
and  W.  L.  Dayton,  of  counsel  with  respondents. 

The  following  opinions  were  now  delivered. 

GREEN,  C.  J.  The  controversy  in  this  cause  relates  to  a 
tract  of  22  acres  of  land  in  the  county  of  Monmouth. 
The  parties,  complainants  and  defendants,  both  claim 
title  under  Andrew  Bell,  who  it  is  admitted  was  seized 
in  fee  of  the  premises.  The  complainants  claim  as  heirs 
at  law  of  John  Holmes,  sen.,  who  died  intestate  on  the 
13th  of  September,  1831.  John  Holmes,  sen.,  derived  title 
from  Andrew  Bell,  by  means — first,  of  a  deed  from  Bell 
to  John  Holmes,  jun.,  dated  23d  August,  1817,  for  64.04 
acres  of  land,  which  deed  has  never  been  recorded ;  and 
secondly  of  a  deed  from  John  Holmes,  jun.,  to  John 
Holmes,  sen.,  dated  10th  December,  1817,  for  22  acres. 

Acknowledged  on  the 1820,  and  recorded  on  the 

19th  of   October,  1827. 


NOVEMBER  TERM,  1855.  423 


Holmes  v.  Stout. 


The  defendants  derive  title  from  Andrew  Bell,  by 
means  of  a  deed  from  Bell  to  Richard  Lane,  dated  and 
acknowledged  28th  August,  1827,  for  64.04  acres,  and  re- 
corded on  the  17th  of  September,  in  the  same  year,  and 
of  a  deed  from  the  administrators  of  Lane  to  the  defendants, 
by  virtue  of  an  order  of  the  Orphans  Court  of  the  county 
of  Monmouth. 

The  deed  from  Andrew  Bell  to  John  Holmes,  jun., 
under  which  the  complainants  claim,  never  having  been 
recorded,  the  later  deed  from  Bell  to  Lane,  under  which 
the  defendants  claim,  has  acquired  the  priority  by  virtue  of 
the  registry  act,  JRev.  St.  643,  §  18,  unless  either  Lane  is 
not,  in  the  language  of  the  act,  a  bona  fide  purchaser  with- 
out notice,  or  unless  the  priority  is  lost  by  fraud. 

The  bill  of  complainant  charges,  that  the  deed  from  Bell 
to  John  Holmes,  jun.,  was  fraudulently  kept  by  the  grantee 
from  being  recorded,  and  that  the  subsequent  deed  from 
Bell  to  Lane  was  procured  by  a  conspiracy  and  collusion 
between  John  Holmes,  jun.  and  Lane,  for  the  purpose 
of  defrauding  John  Holmes,  sen.,  and  those  who  might 
hold  under  him.  The  bill  further  charges,  that  at  the  time 
of  the  conveyance  from  Bell  to  Lane,  Lane  perfectly  well 
knew  of  the  deed  from  Bell  to  Holmes,  jun.,  and  also  of 
the  deed  from  John  Holmes,  jun.,  to  John  Holmes,  sen., 
and  that  John  Holmes,  sen.,  was  then  in  possession  of 
the  granted  premises.  The  bill  further  charges,  that  the 
defendants  purchased  at  the  administrators'  sale  with  full 
knowledge  of  the  complainants'  title,  and  with  the  view 
of  defeating  that  title,  and  of  defrauding  those  claiming 
under  it. 

The  case  made  by  the  bill  is  one  of  actual  fraud  against 
John  Holmes,  jun.,  and  Richard  Lane.  That  case  is  not 
supported  by  the  evidence.  There  is  no  proof  of  actual 
fraud  as  against  Richard  Lane.  No  proof  that  when  he 
took  title  from  Bell,  he  know  of  the  conveyance  to  John 
Holmes,  sen.,  or  of  the  existence  of  any  outstanding  title 


424       COURT  OF  ERRORS  AND  APPEALS. 

Holmes  v.  Stout. 

adverse  to  the  title  which  he  acquired  by  virtue  of  his 
purchase  and  deed. 

In  the  absence  of  proof  of  actual  fraud,  the  complain- 
ants nevertheless  insists,  that  the  title  to  Richard  Lane  has 
acquired  no  priority  over  the  complainants'  title  by  reason 
of  priority  of  registry,  because  Lane  was  not  a  bona  fide 
purchaser  for  a  valuable  consideration  without  notice  of  the 
prior  deed  from  Bell  to  Holmes. 

The  deed  to  Lane  purports  to  have  been  made  for  a 
valuable  consideration.  That  is  sufficient  evidence  of  the 
payment  of  the  consideration  until  the  contrary  is  proved. 
The  evidence,  so  far  as  it  goes,  supports  rather  than  im- 
pugns the  recital  of  the  deed.  Lane,  then  in  the  absence 
of  proof  of  actual  fraud,  must  be  regarded  as  a  bona  fide 
purchaser  for  a  valuable  consideration,  unless  he  had  notice 
of  the  prior  title  under  which  the  complainants  claim.  The 
complainants  insist  that  he  had  both  actual  and  constructive 
notice  of  that  title. 

•  The  evidence  shows  unequivocally  that,  at  the  time  of 
the  conveyance  from  Bell  to  Lane,  Lane  was  informed 
that  a  previous  conveyance  had  been  made  by  Bell  to 
John  Holmes,  jun.  The  fact  was  distinctly  and  repeatedly 
stated  by  Bell,  and  upon  this  ground  he  at  first  refused 
to  make  the  conveyance  to  Lane.  But  Holmes,  to  whom 
that  conveyance  was  alleged  to  have  been  made,  was 
present  at  the  time,  and  denied  the  existence  of  any  such 
title.  He  alleged  that  he  had  never  received  the  deed,  or 
if  he  had,  that  it  was  lost.  Lane  moreover  purchased  the 
title  of  Holmes,  jun.,  and  at  his  instance,  took  the  con- 
veyance from  Bell.  He  had  notice  of  the  prior  conveyance 
sufficient  to  put  him  upon  inquiry.  But  what  inquiry 
could  he  have  made  that  would  have  been  availing  ?  The 
very  party  to  whom  the  prior  conveyance  was  made  de- 
nied its  existence,  and  requested  the  conveyance  to  be 
made  to  Lane.  The  prior  deed  was  not  upon  record,  nor 
was  there  upon  record  any  deed  from  Holmes,  the  first 
grantee,  to  any  subsequent  purchaser.  There  is  certainly 


NOVEMBEE  TEEM,  1855.  425 


Holmes  v.  Stout. 


strong  ground  for  apprehension  that  John  Holmes,  jun., 
acted  fraudulently.  It  is  scarcely  credible  that  he  had  for- 
gotten that  he  had  received  a  deed  for  the  property,  and 
had  subsequently  conveyed  it,  by  two  distinct  deeds,  to 
separate  parties.  But,  as  has  been  said,  there  is  no  proof 
in  the  cause,  and  no  reasonable  ground  for  assuming  that 
Lane  knew  of  these  conveyances,  or  was  in  any  way  a  party 
to  the  fraud. 

To  destroy  the  title  acquired  by  prior  registry,  it  is  neces- 
sary that  a  party  should  have  notice  of  a  prior  subsisting 
outstanding  title.  It  is  not  enough  that  he  has  notice 
that  a  prior  deed  had  been  executed,  if  the  notice  conveys, 
also,  the  information  that  the  title  is  not  in  existence. 
The  ground  upon  which  the  title  acquired  by  a  prior 
registry  of  a  deed  is  lost  in  case  of  notice  to  the  second 
grantee  of  the  existence  of  the  prior  conveyance,  is  that 
it  is  a  fraud  in  the  second  grantee  to  take  a  deed,  knowing 
or  having  reason  to  suspect  the  existence  of  the  prior 
title.  All  the  cases  proceed  upon  this  ground.  Unless 
the  information  given  to  Lane  touching  the  existence 
of  a  previous  conveyance,  was  -of  such  character  as  to 
taint  his  conduct  with  fraud,  as  against  those  claiming 
under  the  prior  title,  the  notice  cannot  effect  the  validity 
of  his  title.  But  how  can  his  conduct  in  taking  title 
from  Bell  be  deemed  fraudulent  against  the  owners  of 
the  prior  title?  It  was  surely  not  fraudulent  as  against 
John  Holmes,  jun.,  for  he  denied  the  existence  of  any 
prior  title,  and  it  was  at  his  instance  and  by  his  procure- 
ment that  Lane  took  his  title.  Nor  was  it  fraudulent  as 
against  John  Holmes,  sen.,  for  of  his  title  Lane  had  no 
notice,  and  no  means  of  acquiring  knowledge,  had  he  been 
put  upon  inquiry. 

The  remaining  inquiry  is,  whether  in  the  absence  of  ac- 
tual notice,  Lane  had  constructive  notice  of  the  prior 
title.  It  is  insisted  that  the  possession  of  a  part  of  the 
premises  bj  John  Holmes,  sen.,  at  the  time  of  the  con- 

2N* 


426      COUKT  OF  EEEORS  AKD  APPEALS. 

Holmes  v.  Stout. 

veyance  to  Lane  is  constructive  notice  to  him  of  the  com- 
plainants' title. 

The  rule  in  equity  is,  that  whatever  is  sufficient  to  put  a 
party  upon  inquiry  is  good  notice.  In  Flagg  v.  Mann,  2 
Sumner  554:,  Justice  Story  said,  the  rule  in  equity  seems 
to  be,  that  when  a  tenant  or  other  person  is  in  possession 
of  the  estate  at  the  time  of  the  purchase,  the  purchase? 
is  put  upon  inquiry  as  to  his  title  ;  and  if  he  does  not  in 
quire,  he  is  bound  in  the  same  manner  as  if  he  had  in- 
quired, and  had  positive  notice  of  the  title  of  the  party  in 
possession. 

This  will  be  found  to  be  the  recognised  and  well  set- 
tled doctrine  of  courts  of  equity.  Daniels  v.  Davison,  16 
Vesey  249  ;  S.  O.  17  Vesey  433  ;  2  Fond.  Eq.,  ch.  6,  §  3 ; 
Hall  v.  Smith,  14  Vesey  426  ;  Taylor  v.  Siilebert,  2  Vesey 
440  ;  Eyre  v.  Doepain,  2  Ball  &  B.  290  ;  Duke  v.  Page,  2 
Green, 's  Chan.  R.  154. 

The  same  doctrine  is  adopted,  both  by  courts  of  law 
and  of  equity,  in  the  construction  of  the  registry  acts. 
The  subject  underwent  a  very  full  discussion  in  the  case 
of  Tuttle  v.  Jackson,  before  the  Court  of  Errors  of  the 
state  of  New  York.  Walworth,  C.,  in  delivering  the  opin- 
ion of  the  court,  stated  the  law  thus :  If  ther  subsequent 
purchaser  know  of  the  unregistered  mortgage  at  the  time 
of  purchase,  he  cannot  protect  himself  against  that  con- 
veyance ;  and  whatever  is  sufficient  to  make  it  his  duty  to 
inquire  as  to  the  rights  of  others,  is  considered  legal  notice 
to  him  of  those  rights.  Here  Tuttle,  the  person  to  whom 
the  unregistered  deed  was  given,  was  in  the  possession  of 
the  premises  at  the  time  of  the  sheriff's  sale,  and  this  was 
good  constructive  notice  to  the  subsequent  purchaser  to 
make  it  his  duty  to  inquire  as  to  the  rights  of  the  person 
in  possession.  ******  By  our  registry  acts,  the  un- 
registered deed  is  only  void  as  against  a  subsequent  oona 
fide  purchaser.  The  rule  of  equity  here  is  therefore  the 
rule  of  law ;  and  whatever  would  in  equity  charge  the 
party  with  notice  of  the  equitable  rights  of  a  prior  pur- 


NOVEMBER  TERM,  1855.  427 


Holmes  v.  Stout. 


chaser  or  encumbrancer,  so  as  to  deprive  him  of  the  pri- 
vilege of  pleading  that  he  is  a  Ttona  fide  purchaser  without 
notice,  must  in  a  court  of  law  be  sufficient  to  protect  the 
legal  rights  acquired  under  the  unregistered  decree  against 
the  subsequently  recorded  conveyance.  6  Wend.  226-7. 

Our  own  statute  (Rev.  Stat.  644,  §  18,)  like  that  of  New 
York,  makes  the  unregistered  deed  void  only  as  against  a 
subsequent  bona  fide  purchaser.  The  argument  therefore 
is  applicable  here. 

In  Norcross  v.  Wedging,  2  Mass.  508,  Ch.  Justice  Par- 
sons said :  "  The  provision  of  the  statute  for  registering 
conveyances  is  to  prevent  fraud  by  giving  notoriety  to 
alienations.  But  if  the  second  purchaser  had  notice  of  the 
first  conveyance,  the  intent  of  the  statute  is  answered, 
and  his  purchase  afterwards  is  a  fraudulent  act,"  (in  other 
words,  he  is  not  a  bonafide  purchaser).  This  notice  may 
be  express,  or  it  may  be  implied  from  the  first  purchaser 
being  in  the  open  and  exclusive  possession  of  the  estate 
under  his  deed.  The  same  principle  is  declared  in  Colby 
v.  Kennwton,  4  New  Hamp.  262,  and  in  Davis  v.  Blunt,  6 
Mass.  487. 

Chancellor  Kent  states  the  doctrine  in  a  somewhat  modi- 
fied or  more  guarded  form,  thus :  "  The  statute  of  New 
York  postpones  an  unregistered  deed  only  as  against  a 
subsequent  purchaser  in  good  faith  and  for  a  valuable 
consideration,  and  this  lets  in  the  whole  of  the  English 
equity  doctrine  of  notice.  *  *  *  The  doctrine  of  notice 
equally  applies,  however,  as  I  apprehend,  throughout  the 
United  States,  and  it  everywhere  turns  on  a  question  of 
fraud,  and  on  the  evidence  necessary  to  support  it.  In 
pursuance  of  that  policy,  and  in  order  to  support  at  the 
same  time  the  policy  and  injunctions  of  the  registry  acts  in 
all  their  vigor  and  genuine  meaning,  implied  notice  may  be 
equally  effective  with  direct  and  positive  notice,  but  then 
it  must  not  be  that  notice  which  is  barely  sufficient  to  put 
a  party  upon  inquiry.  Suspicion  of  notice  is  not  suf 
ficient.  The  inference  of  a  fraudulent  intent  affecting 


428      COUKT  OF  EEEOES  AKD  APPEALS. 

Holmes  v.  Stout. 

the  conscience  must  be  grounded  on  clear  and  strong  cir- 
cumstances in  the  absence  of  actual  notice.  The  inference 
must  be  necessary  and  unquestionable."  2  JZenfs  Com. 
171-2. 

.j  Every  possession  will  not  amount  to  implied  notice.  It 
must  be  an  actual  and  exclusive  possession  manifested  by 
notorious  acts  of  ownership,  and  such  as  would  naturally 
be  observed  and  known  by  others.  Merely  cutting  wood 
or  pasturing  cattle  on  unenclosed  woodland,  repairing  the 
fences,  and  even  removing  an  old  house  standing  on  part 
of  the  land,  which  may  be  regarded  as  mere  acts  of  tres- 
pass as  well  as  of  ownership,  have  been  held  insufficient. 
Nor  does  even  actual  open  notorious  possession  of  the  land 
necessarily  and  in  all  cases  create  a  presumption  of  notice. 
If,  for  example,  the  first  purchaser  were  previously  in  pos- 
session as  lessee,  and  after  purchase  continue  in  possession 
as  grantee  without  any  actual  visible  change  in  the  char- 
acter of  his  possession,  this  could  not  operate  as  notice  to  a 
second  purchaser,  who  knew  of  the  previous  possession  as 
lessee,  and  had  no  notice  of  the  actual  change  of  title. 
McMeehan  v.  Griffing,  3  Pick.  149. 

The  tract  in  question,  with  the  exception  of  three  and 
a  quarter  acres,  is  unenclosed  woodland,  in  which  John 
Holmes,  sen.,  was  accustomed  to  cut  wood.  Three  and  a 
quarter  acres  were  cleared  land,  enclosed  and  in  the 
actual  occupation  of  John  Holmes,  jun.  It  appears,  how- 
ever, that  owing  to  a  mislocation  of  the  survey,  this  three 
and  a  quarter  acres  were  cleared  and  enclosed  with  a 
fence  upon  a  forty-five  acre  tract,  purchased  by  John 
Holmes,  sen.,  of  William  Holmes  many  years  previously 
to  his  purchase  of  Bell.  It  was  held  and  occupied  as  a 
part  of  the  purchase  from  "William. Holmes.  It  was  en- 
closed, and  in  the  open  notorious  occupation  of  John 
Holmes,  sen.,  long  before  his  purchase  from  Andrew  Bell. 
How  is  it  possible,  then,  that  the  possession  of  this  lot  by 
John  Holmes,  sen.,  should  have  been  notice  to  Richard 
Lane  of  the  conveyance  from  Bell  to  Homes?  To  pre- 


]STOYEMBER  TERM,  1855.  429 


Holmes  v.  Stout. 


sume  such  notice  would  be  obviously  a  presumption  with- 
out proof  and  against  probability. 

There  being  evidence  neither  of  an  actual  or  presump- 
tive notice  to  Richard  Lane,  or  at  the  time  he  acquired 
title  of  a  previous  outstanding  title  acquired  from  An- 
drew Bell,  Lane  is  a  lona  fide  purchaser  without  notice ; 
and  consequently,  he  had  a  valid  title  acquired  by  priority 
of  registry.  The  previous  conveyance  by  Andrew  Bell  to 
John  Holmes,  jun.,  as  against  Lane,  is,  by  the  terms  of  the 
statute,  void  and  of  no  effect. 

This  being  the  case,  it  is  immaterial  whether  Stout 
and  Williams,  at  the  time  of  their  purchases,  had  or  had 
not  notice  of  the  title  of  the  complainants.  The  rule  ia 
well  settled,  that  if  a  person  having  notice  of  a  previous 
outstanding  title  purchase  from  one  having  no  notice,  the 
second  purchaser  may  protect  himself  by  want  of  notice 
in  his  vendor ;  in  other  words,  the  title  of  the  first  pur- 
chaser being  perfect,  he  may  transmit  a  perfect  title  to 
his  vendee.  The  rule  is  obviously  necessary  to  secure  to  a 
~bona,  fide  purchaser  without  notice  the  full  benefit  of  the 
purchase.  Brandlyn  v.  Ord,  1  Aik.  571 ;  Mertins  v.  Jol- 
liffe,  AmbUr  313 ;  Sweet  v.  Southcote,  2  Bro.  Chan.  Cos. 
66  ;  Bumpeer  v.  Platun,  1  Johns,  Ch.  7?.  219  ;  2  Forib. 
Eq.  148,  B.  2,  ch.  6,  §  2,  note  i. 

The  decree  of  the  Chancellor  should  be  affirmed  with 
costs. 

POTTS,  J.  This  is  an  appeal  from  a  decree  of  the  Chan- 
cellor dismissing  the  complainants'  bill  upon  the  final  hear- 
ing with  costs. 

The  bill  was  filed  by  Joseph  Holmes  and  others,  who 
claim  title  to  a  tract  of  22  acres  of  land  in  Dover,  now 
Ocean  county,  being  part  of  a  tract  which,  they  allege, 
Andrew  Bell  conveyed  to  John  Holmes,  jun.,  and  which 
22  acres  he  conveyed  to  John  Holmes,  sen.,  under  whom 
the  complainants  hold  as  heirs  or  purchasers.  The  de- 
fendants, Stout  and  Williams,  are  in  possession  of  the 


430      COUKT  OF  EKKOKS  AND  APPEALS. 

Holmes  v.  Stout. 

land  under  a  deed  from  the  administrators  of  Richard 
Lane,  deceased,  who  was  also  a  purchaser  from  Bell.  The 
prayer  of  the  bill  is,  that  the  title  deed  of  the  defendants 
may  be  decreed  to  be  null  and  void  ;  may  be  delivered  up 
to  the  complainants  ;  that  the  defendants  may  be  enjoined 
against  setting  up  their  title  to  the  premises  ;  and  that  the 
complainants'  title  may  be  declared  good  and  operative,  and 
an  account  of  rents  and  profits  taken. 

It  appears  in  evidence  that,  on  the  23d  August,  1817, 
John  Holmes,  jun.,  purchased  of  Andrew  Bell  a  tract  of 
64.04  acres  of  land,  for  the  consideration  of  $119,  for 
which  he  gave  his  promissory  note,  and  took  from  him  a 
deed  of  conveyance,  which  was  never  recorded.  On  the 
19th  of  October,  1817,  John  Holmes,  jun.,  sold  and  con- 
veyed to  John  Holmes,  sen.,  22  acres,  being  part 'of  the  same 
premises,  which  deed  was  acknowledged  on  the  2d  Au- 
gust, 1820,  but  was  not  recorded  until  the  19th  October,  1827". 
On  the  27th  August,  1827,  according  to  Andrew  Bell's 
testimony,  the  said  John  Holmes,  jun.,  in  company  with 
Richard  Lane,  called  upon  Bell,  and  said  he  did  not  re-1 
collect  getting  his  deed  from  him,  as  he  could  not  find  it 
among  his  papers.  Bell  told  him  he  was  sure  he  had  it, 
and  must  search  among  his  papers  for  it,  and  if  he  could 
not  find  it  by  the  October  term  of  the  court,  he,  Bell, 
would  bring  with  him  the  original  return,  and  do  what 
might  be  advisable  in  relation  to  giving  him  another  deed. 
The  next  day  John  Holmes,  jun.,  and  Lane  called  again 
on  Bell,  and  prevailed  on  him  to  execute  a  deed  to  Lane, 
to  whom  Holmes  said  he  had  sold  the  land.  This  deed  to 
Lane  was  made  for  the  reason  that  Holmes  assured  Bell 
the  deed  to  himself  was  lost ;  and  Holmes  gave  Bell,  at 
:the  time,  a  stipulation  in  writing  under  seal,  that  if  the 
first  deed  should  ever  be  found,  it  should  not  be  used  as  a 
title  paper,  but  should  be  cancelled.  The  object  of  making 
•  the  deed  to  Lane  was  to  save  the  expense  of  another  con- 
veyance. Lane  paid  the  consideration  money  he  had  agreed 
rto  give  for  the  land,  $60,  to  Bell  and  it  was  credited  on 


NOVEMBER  TEEM,  1855.  431 


Holmes  v.  Stout. 


John  Holmes',  sen.,  note  for  $119,  which  Bell  still  held. 
Lane  was  present  at  both  interviews,  and  heard  all  that 
passed.  Lane  had  his  deed  recorded  on  the  Ylth  September, 
1827,  a  little  more  than  a  month  before  the  deed  for  the 
22  acres,  from  John  Holmes,  jun.,  to  John  Holmes,  sen., 
M'as  put  on  record. 

The  complainants  charge,  that  the  execution  and  delivery 
of  this  deed  from  Bell  to  Lane,  was  procured  and  brought 
about  by  a  conspiracy  and  collusion  between  John 
Holmes,  jun.,  and  said  Lane,  who  were  brothers  in  law, 
for  the  purpose  of  defrauding  the  said  John  Holmes,  sen. ; 
that  it  was  with  this  design  that  John  Holmes,  jun., 
omitted  to  put  his  deed  of  1817  from  Bell  on  record,  and 
has  either  destroyed  it  or  keeps  it  concealed ;  that,  Lane, 
when  he  took  the  deed  from  Bell,  knew  of  the  prior  con- 
veyances from  Bell  to  Holmes,  jun.,  and  also  of  the  con- 
veyance from  Holmes,  jun.,  to  Holmes,  sen.,  of  the  22 
acres  parcel  of  the  premises,  and  also  knew  that  Holmes, 
sen.,  was  then  in  possession  of  the  lot.  And  the  com- 
plainants also  charge,  that  Stout  and  Williams,  when,  in 
1832,  they  purchased  the  tracts  of  the  administrators  of 
Lane,  knew  of  the  first  deed  to  Holmes,  jun.,  and  of  hie 
conveyance  of  the  22  acres  to  Holmes,  sen. ;  and  also 
knew  that  Holmes,  sen.,  and  his  heirs  and  the  complainants 
had  been  in  •  possession  of  the  premises  ever  since  the 
purchase  by  Holmes,  sen.,  and  that  they,  the  defendants, 
purchased  with  a  view  to  defeat  the  Holmes,  sen.,  title,  and 
defraud  those  who  held  under  him. 

The  defendants,  in  their  answer,  deny  that  Bell  ever 
made  any  deed  for  the  land  to  John  Holmes,  jun.,  and 
say,  if  he  did,  they  never  saw  it,  and  never  heard  that 
such  a  deed  had  been  made  until  after  their  purchase. 
They  further  deny  that  they  ever  heard  of  a  deed  having 
been  made  by  John  Holmes,  jun.,  to  John  Holmes,  sen., 
until  since  the  filing  of  this  bill.  They  deny  all  fraud  and 
collusion  charged  against  them  in  the  bill,  and  also  deny 
that  John  Holmes,  sen.,  or  his  heirs  or  the  complainants. 


432   COUKT  OF  ERRORS  AND  APPEALS. 


Holmes  v.  Stout. 


ever  had  possession  of  the  premises  in  question ;  but,  on 
the  contrary,  allege  that  Lane  always  had  the  possession 
during  his  life,  and  that  they  have  had  the  possession  since 
their  purchase. 

There  is  nothing  in  the  evidence  in  the  cause  which  goes 
to  establish  the  charge  of  fraud  and  collusion  on  the  part 
of  Richard  Lane.  Indeed,  this  ground  of  relief  was  not 
much  insisted  on  by  the  counsel  for  the  appellants  in  their 
argument.  But  they  put  their  case  upon  the  title  derived 
through  John  Holmes,  sen.,  and  John  Holmes,  jun.,  from 
Bell ;  and  insist,  that  though  the  deed  from  Bell  to  John 
Holmes,  jun.,  has  never  been  recorded,  and  the  deed 
from  John  Holmes,  jun.,  to  John  Holmes,  sen.,  was  not 
recorded  until  more  than  a  month  after  that  from  Bell  to 
Lane ;  yet  that  their  title  must  prevail  over  the  Lane  title, 
because,  as  they  allege,  Lane  was  not  a  T)ona  fide  purchaser 
for  a  good  consideration  without  notice  of  the  prior  unre- 
corded conveyance. 

There  is  satisfactory  evidence  of  the  conveyance  by  Bell 
to  John  Holmes,  jun.,  on  the  23d  August,  1817,  of  the 
64  acres.  Bell  himself  testifies  with  great  positiveness  to 
the  fact;  and  he  produces  the  original  return  of  the  tract, 
made  to  himself  by  endorsements,  on  which  it  appears 
that  the  conveyance  was  made  at  that  time,  and  the  note 
for  $119  taken  as  the  consideration.  He  produces  tho 
note  dated  the  23d  August,  1817,  with  the  receipt  of  the 
$60  paid  by  Lane,  in  1827,  endorsed  on  it.  And  a  certified 
copy  of  the  deed  for  the  22  acres,  from  John  Holmes,  jun., 
to  John  Holmes,  sen.,  is  also  produced,  dated  December 
10th,  1817,  which  recites  a  conveyance  of  the  64  acre  tract 
from  Bell  to  Isaac  Holmes,  jun.,  though  with  blanks  for  the 
dates. 

But  these  deeds  were  unrecorded  at  the  time  that  Lane 
purchased.  And  if  he  stands  in  the  situation  of  "  a  bona 
fide  purchaser  for  a  valuable  consideration,  not  having 
notice  thereof,"  within  the  meaning  of  the  8th  section  of 
the  act  respecting  conveyances  (Patersorfs  L.  399),  which 


NOYEMBEE  TEEM,  1855.  433 


Holmes  v.  Stout. 


governs  this  case,  he  is  entitled  to  the  benefit  of  the  pro- 
vision, that  such  prior  unrecorded  conveyances  "  shall  be 
void  and  of  no  effect  against "  him.  Then — 

I.  As  to  the  deed  from  Bell  to  John  Holmes,  jun,,  of 
23d  August,  1817.  It  is  clear,  from  the  evidence  in  the 
cause,  that  Lane  had  notice  of  the  fact,  that  Andrew  Bell 
had,  on  the  day  last  mentioned,  made  a  deed  of  convey- 
ance of  the  64.04  acres  to  the  said  John  Holmes,  jun.;  for 
Holmes  went  with  him  to  Bell,  on  the  27th  August,  1827, 
and  in  his  presence  and  hearing  the  matter  of  this  deed 
was  talked  over ;  and  although  Holmes  at  first  said  he  had 
no  recollection  of  having  received  it,  yet  Bell  convinced 
him  it  had  been  executed  and  delivered  to  him.  But  we 
must  take  the  whole  of  what  passed  in  the  presence  of  Lane 
together ;  and  we  find,  that  though  Holmes,  jun.,  finally 
admitted  he  had  received  the  deed,  yet  he  affirmed  that 
he  could  not  find  it,  that  it  was  lost ;  and  it  was  on  this 
account,  and  to  supply  the  place  of  the  lost  deed  to  Holmes, 
that  the  deed  to  Lane,  to  whom  Holmes  said  he  had  sold 
the  property,  was  made ;  and  at  the  same  time  Holmes 
stipulated  to  cancel  the  lost  deed,  if  found,  and  that  it 
should  never  be  set  up  as  a  title.  Of  what,  then,  had  Lane 
notice  ?  Simply  of  the  fact,  that  a  deed  had  been  executed 
and  delivered  in  1817,  had  been  lost  or  mislaid,  and  was 
thenceforth  to  be  considered  and  treated  as  a  void  deed,  and 
to  be  inoperative  as  an  instrumen't  of  title. 

Now  fraud,  or  mala  fides,  is  the  ground  upon  which 
courts  proceed  in  dealing  with  these  cases  of  notice.  If 
one  takes  the  title  to  an  estate,  knowing  at  the  time  that 
the  right  is  in  another,  that  pome  one  else  has  a  title, 
though  unrecorded,  derived  from  the  party  with  whom  he 
treats,  it  is  a  fraud  in  him  to  take  advantage  of  the  want 
of  registry  to  defeat  the  outstanding  title  by  taking  a  con- 
veyance to  himself,  and  is  dealt  with  accordingly.  Le  JVeve 
v.  Le  Neve,  1  Ve#.  sen.  64;  JoUand  v.  Stainbridge,  '3  Yes. 
478;  Dey  v.  Dunham.  2  Johns.  Ch.  A\  182;  Jackson  v. 

VOL.  ii.  2  o 


434      COURT  OF  ERRORS  AND  APPEALS. 

Holmes  r.  Stout. 

£urgot,  10  Johns.  R.  462 ;  1  Story's  Eq.  Jur.  §  397 ;  4 
JTenfs  Corn.  171. 

And  so,  whatever  is  sufficient  to  put  a  person  upon  in- 
quiry is  good  notice.  But,  as  was  well  said  by  the  court 
in  Boggs  v.  Varner,  6  Watts  (&  £  469,  474,  "as  every 
presumption  is  in  favor  of  the  subsequent  purchaser,  when 
the  former  owner  is  guilty  of  neglect,  his  title  cannot  be 
postponed,  except  by  evidence  which  taints  his  conduct 
with  fraud.  And  this,  it  is  obvious,  ought  not  to  be  done 
by  testimony  in  its  nature  vague  and  indefinite  and  leading 
to  no  certain  results,  such  as  that  he  ought  to  have  known 
of  the  prior  title,  because  he  lived  near  the  owner,  in  the 
same  town,  perhaps,  or  on  the  next  lot ;  that  he  was  well 
acquainted  with  him,  or  because  the  title  was  well  known 
to  others.  This  may  well  be  true,  and  yet  at  the  time  he 
pays  his  money  he  may  be  ignorant  of  any  other  title  than 
his  own.  It  is  not  just  that  inferences  should  be  strained 
in  favor  of  the  person  by  whose  default  the  mischief  has 
been  done.  See  Jones  v.  Smith,  1  Hare  55,  and  cases 
there  cited. 

In  Rogers  v.  Janes,  8  New  Samp.  264,  where  a  vendor 
exhibited  a  prior  deed  for  the  land  to  the  party  about  to 
purchase,  and  told  him,  at  the  same  time,  that  it  had  never 
been  delivered,  it  was  held  that  this  statement,  fortified  as 
it  was  by  the  actual  possession  of  the  instrument,  was  not 
sufficient  to  put  the  purchaser  on  inquiry  of  the  grantee 
named  in  the  deed,  though  the  deed  had  in  fact  been  de- 
livered, and  had  been  handed  back  to  the  vendor  on  the 
faith  of  a  promise  to  have  it  recorded. 

These  cases  establish  and  illustrate  the  rule,  that  upon 
questions  of  this  nature  the  only  proper  subject  of  in- 
quiry is,  whether  the  second  purchaser  has  acted  in  bad 
faith ;  for  if  he  had  actual  knowledge  that  the  property 
was  in  some  way  charged,  encumbered,  or  affected,  or  the 
circumstances  satisfy  the  court  that  he  fraudulently  turned 
a~.vay  from  the  knowledge  of  facts  which  the  res  gestcz 
would  naturally  suggest  to  a  prudent  mind,  in  order  to 


NOVEMBER  TERM,  185o.  435 


Holmes  v.  Stout. 


avoid  nol  ice,  he  is  not  entitled  to  the  protection  of  the 
statute.  But  the  case  before  us  is  that  of  one  who  pur- 
chased in  the  presence  of  the  party  to  whom  the  prior 
conveyance  was  made — purchased  not  only  with  the  con- 
sent, but  in  fiulfilment  of  an  agreement  made  with  the 
first  purchaser,  the  party  who  had  received  the  prior  deed, 
and  who  was  then  protesting  that  he  had  lost  it,  and  stip- 
ulating to  cancel  it  if  ever  found,  and  who,  in  fact,  re- 
ceived the  benefit  of  the  purchase  money.  There  is  surely 
no  fry. ad  in  this  transaction,  no  mischief  perpetrated  which 
it  wo/;  the  intention  of  the  statute  to  prevent.  Lane  was 
a  pu  :chaser,  certainly  so  far  as  the  deed  from  Bell  to  John 
Holmes,  jun.,  is  concerned,  not  having  notice  within  the 
moaning  of  the  statute.  It  has  been  suggested  that  the 
nf  -tice  to  Lane,  that  John  Holmes,  jun.,  had  once  had  a  deed 
fzr  the  land,  is  decisive,  because  it  apprized  Lane  of  the 
fact,  that,  whatever  Holmes  might  say  to  the  contrary,  he 
had  had  the  power,  and  might  have  exercised  it,  of  con- 
veying to  somebody  else.  But  the  conclusive  answer  is, 
that  this  amounted  to  neither  actual  nor  constructive  no- 
tice that  any  such  conveyance  had  been  made,  and  no 
knowledge  of  the  existence  of  any  such  deed  is  brought 
home  to  Lane,  nor  was  any  such  on  record.  For — 

II.  As  to  the  deed  from  John  Holmes,  jun.,  to  John 
Holmes,  sen.,  it  is  not  pretended  that-  Lane  had  any  actual 
notice  of  that  at  the  time  he  purchased.  There  is  no  evi- 
dence that  Lane  had  any  information  or  knowledge  that 
John  Holmes,  jun.,  had  conveyed  away  the  tract,  or  any 
part  of  it,  to  anybody.  All  that  is  in  evidence  of  what 
was  said  and  done  at  the  time  of  the  purchase  was  calcu- 
lated to  negative  such  an  idea.  We  are  not  at  liberty  to 
guess,  because  they  were  brothers  in  law,  that  therefore 
Lane  must  have  known  of  the  fact.  And  even  if  Lano 
had,  out  of  abundant  caution,  undertaken  to  inquire 
whether  John  Holmes,  jun.,  had  sold  to  anybody,  there 
was  no  clue* to  guide  him  in  the  inquiry,  for  there  was  no 


436         COUKT  OF  ERRORS  AND  APPEALS. 

Holmes  v.  Stout. 

deed  either  from  Bell  or  from  John  Holmes,  jun.,  upon 
record. 

It  is  said  that  John  Holmes,  sen.,  had  possession  of  the 
tract  at  the  time,  and  that  that  was  constructive  notice. 
Undoubtedly  the  possession  of  the  premises  by  the  prior 
purchaser  may  operate  as  a  notice,  but  it  must  be  an  open, 
actual,  unequivocal  possession,  and  of  a  nature  to  put  a 
purchaser  on  his  guard,  and  not  to  mislead  him.  Bush  v. 
Golden,  17  Conn,  594 ;  Butler  v.  Stevens,  26  Maine  484 ; 
Henrick  v.  Powell,  9  Alabama,  409 ;  Mecham  v.  Grijfing,  3 
Piek.  149. 

In  the  last  case  cited,  it  was  held,  that  occasional  acts 
of  ownership,  by  pasturing  cattle  or  removing  fences, 
would  not  be  sufficient,  unless  they  were  so  far  continuous 
that,  if  done  by  wrong  under  a  claim  of  title,  they  would 
lose  the  character  of  mere  trespasses,  and  acquire  that  of 
disseisin.  And  the  occasional  acts  of  cutting  fire-wood  on 
an  open  unenclosed  wood  lot  is  within  the  same  principle, 
for  there  is  nothing  in  such  an  act  to  distinguish  it  from 
a  trespass.  The  tract  in  question  was  timber  land  lying 
out  in  common ;'  it  lay  adjoining  other  unenclosed  land 
of  the  same  description.  The  only  evidence  of  cutting,  up 
to  the  time  of  Lane's  purchase,  in  1827,  is  that  of  Jacob 
Holmes,  who  says  his  father,  John  Holmes,  sen.,  used  to 
get  his  fire-wood  off  of  that  and  the  other  woodland  he 
owned  adjoining  it,  and  was  not  particular  on  which  part 
he  cut.  This  is  not  evidence  of  such  a  possession  as  could 
operate  as  a  notice  of  a  claim  of  title. 

Upon  the  whole,  it  is  clear  that,  so  far  as  Lane  is  con- 
cerned, his  title  was  acquired  in  good  faith'  and  without 
notice. 

III.  The  counsel  for  the  appellants,  assuming  that  they 
had  successfully  assailed  Lane's  title,  contended  that  they 
were  entitled  to  the  relief  prayed  for  in  their  bill  against 
Stout  and  Williams,  the  appellees,  on  the  ground,  that  at 
the  time  they  purchased  the  land,  in  1832,  at  a  sale  made 
by  the  administrators  of  Lane  under  an  order  of  the 


NOVEMBEE  TEEM,  1855.  437 


Dunham  v.  Cox. 


Orphans  Court,  they  had  notice,  both  actual  and  construc- 
tive, of  the  Holmes,  sen.,  title. 

But  to  this  the  decisive  answer  is,  that  if  Lane  was  a 
bona  fide  purchaser  without  notice  of  the  prior  title,  it  is 
of  no  consequence  what  notice  or  knowledge  either  Lane 
or  his  grantees  may  have  subsequently  received.  For  the 
title,  thus  legally  acquired,  could  not  be  defeated  by  any- 
thing subsequently  brought  to  the  notice  of  either.  The 
registry  act  would  furnish  no  protection  at  all,  if  the  title 
qf  a  honafide  purchaser,  not  having  notice  of  a  prior  con- 
veyance at  the  time  of  the  purchase,  could  be  affected  by 
any  notice  afterwards  given  to  him ;  and  as  he  could  not 
be,  his  grantees  cannot  be.  71  Law  Lib.  131  (2  White  & 
Tudor,  Cos.  in  Eq.) ;  1  Story's  Eq.  Jur.  §  409,  410. 

The  decree  of  the  Court  of  Chancery  is,  in  my  judg- 
ment, right,  and  should  be  affirmed. 

Decision  affirmed  by  the  following  vote  : 

For  affirmance — CHIEF  JUSTICE,  Judges  AEEOWSMTTH, 
CORNELISON,  ELMEE,  HUTLER,  OGDEN,  POTTS,  EISLEY,  EYEE- 
SON,  VALENTINE,  WILLIAMSON,  WILLS. 

For  reversal — None. 

CITED  tn  Hoy  v.  Bramhall,  4  C.  E.  Gr.  572  ;  Coleman  v.  Barklew,  3  Dutch. 
359. 


Between  ASA  C.  DUNHAM,  NEHEMIAII  DUNHAM  and  AZA- 
EIAII  W.  DUNHAM,  appellants,  and  JAMES  B.  Cox,  re- 
spondent. 

That  a  judgment  and  execution  creditor  may  maintain  a  bill  in  a  court  of 
equity  to  remove  out  of  the  way  fraudulent  encumbrances  placed  by  a 
debtor  upon  his  property,  in  order  that  the  property  may  be  appropriated 
free  from  such  fraudulent  encumbrances  to  the  satisfaction  of  the  credi 
tor's  judgmoat,  is  well  established. 

L>  O* 


438         COUET  OF  EREOES  AND  APPEALS. 

Dunham  v.  Cox. 

When  a  creditor  has  by  a  judgment  established  his  debt,  by  the  statute  he  ac- 
quires a  lien  upon  all  the  real  estate  of  his  debtor  to  satisfy  his  debt.  If  the 
debtor  has  fraudulently  conveyed  away  or  encumbered  his  real  estate,  so 
as  to  interpose  an  obstacle  which  embarrasses  the  debtor  in  appropriating  it 
by  legal  process  in  satisfaction  of  his  debt,  then  the  creditor  may  file  his 
bill  to  remove  out  of  the  way  such  fraudulent  conveyance  or  encumbrance. 
It  is  not  necessary  for  him  to  take  out  execution  upon  his  judgment.  It  is, 
perhaps,  most  advisable  for  him  to  do  so  ;  it  may  avoid  a  contest  with  a 
subsequent  execution  creditor. 

But  if  it  is  the  personal  property  of  the  debtor  which  the  creditor  wishes  to 
reach  and  appropriate  to  the  payment  of  his  judgment,  he  must  take  out 
an  execution  upon  his  judgment  before  he  can  exhibit  his  bill ;  for  it  is  by 
the  execution,  and  not  by  the  judgment,  that  he  acquires  a  lien  upon  the 
personal  property. 

It  is  not  enough  for  the  bill  to  show  that  the  debtor  has  made  a  fraudulent 
disposition  of  any  particular  portion  of  his  property  to  entitle  the  creditor 
to  the  aid  of  a  court  of  equity  ;  he  must  show  that  such  disposition  embar- 
rasses him  iii  obtaining  satisfaction  of  his  debt.  Facts  must  be  stated  from 
which,  at  least,  the  inference  may  be  drawn  that  the  aid  of  a  court  o'f  equi- 
ty is  required  to  give  the  judgment  its  legal  and  full  effect. 

Bill  defective  on  demurrer. 


On  the  3d  day  of  April,  1^50,  James  B.  Cox,  the  re- 
spondent, filed  his  bill  in  the  Court  of  Chancery  of  New 
Jersey  against  the  above  named  appellants. 

The  bill  sets  forth,  that  he  (the  said  James  B.  Cox), 
having  a  just  and  lawful  claim  against  one  Asa  C.  Dun- 
ham, of  Clinton,  in  the  county  of  Hunterdon,  in  said 
state,  amounting  to  about  twelve  hundred  dollars,  of  prin- 
cipal and  interest,  upon  three  several  promissory  notes  of 
the  following  descriptions,  to  wit :  one  note  for  four  hun- 
dred dollars,  bearing  date  the  twenty-third  day  of  Octo- 
ber, eighteen  hundred  and  thirty-three,  made  and  exe- 
cuted by  the  said  A.  C.  Dunham  to  your  orator,  and  pay- 
able three  months  after  date.  The  second  note,  bearing 
date  the  fifth  day  of  November,  eighteen  hundred  and 
thirty-three,  for  three  hundred  dollars,  made  by  one  Bray 
and  Taylor  to  the  said  Asa  C.  Dunham,  or  order,  and  on  the 
same  day  endorsed  and  delivered  by  the  said  Asa  C.  Dun- 
ham to  your  orator.  The  third  note,  made  by  the  said  Bray 
and  Taylor  to  the  said  Asa  C.  Dunham,  on  the  twenty- 
second  day  of  September,  eighteen  hundred  and  thirty- 


NOVEMBER  TEEM,  1855.  439 


Dunham  v.  Cox. 


two,  for  four  hundred  dollars,  payable  on  the  fourth  day 
of  October  then  next,  and  by  the  said  Asa  C.  Dunham, 
on  the  same  day,  endorsed  and  delivered  to  your  orator.' 
Your  orator  commenced  a  suit  in  the  Supreme  Court  of 
Judicature  of  said  state,  in  the  term  of  November,  eigh- 
teen hundred  and  thirty-four,  for  the  recovery  of  said  notes. 
That  afterwards,  to  wit,  at  a  Circuit  Court,  held  in  May, 
eighteen  hundred  and  thirty-five,  at  Flemington,  in  said 
county,  the  said  Asa  C.»  Dunham,  by  Alexander  Wurts, 
esquire,  his  attorney,  relinquished  the  plea  by  him  pleaded 
in  said  cause,  and  consented  that  judgment  should  be 
rendered  in  said  cause  in  favor  of  your  orator,  and  against 
the  said  Asa  C.  Dunham,  for  the  sum  of  one  thousand 
two  hundred  nineteen  dollars  and  twenty-one  cents,  be- 
sides costs  to  be  taxed.  And  your  orator  further  shows 
unto  your  honor,  that  afterwards,  to  wit,  at  a  term  of  the 
said  Supreme  Court,  held  at  Trenton  on  the  -  -  day 
of  May,  eighteen  hundred  and  thirty-five,  in  the  term  of 
May,  by  the  consideration  and  judgment  of  the  said 
court,  your  orator  recovered  against  the  said  Asa  C.  Dun- 
ham the  sum  of  one  thousand  two  hundred  and  nineteen 
dollars  and  twenty-one  cents,  damages,  so  as  aforesaid  ac- 
knowledged, and  also  the  further  sum  of  forty  dollars  and 
seventy-eight  cents,  for  your  orator's  costs  and  charges  by 
your  orator  in  and  about  the  said  suit  in  that  behalf  ex- 
pended, which  were  adjudged  to  your  orator  by  the  said 
court,  whereof  the  said  Asa  C.  Dunham  is  convicted,  as 
appears  by  the  record  of  the  said  judgment,  now  in  tho 
office  of  the  clerk  of  said  court  at  Trenton,  in  the  said 
state  of  New  Jersey,  or  by  an  exemplified  copy  thereof, 
now  in  the  possession  of  your  orator,  and  ready  to  be  pro- 
duced when  and  where  this  honorable  court  shall  direct, 
reference  being  thereunto  had  will  more  fully  and  at  large 
appear,  and  to  which  your  orator,  for  greater  certainty,  prays 
leave  to  refer. 

And  your  orator  further  shows  unto  your  honor,  that 
the    said    judgment,  so    recovered    in    manner    aforesaid 


440      COUKT  OF  EEEORS  AND  APPEALS. 

Dunham  v.  Cox. 

against   the   said  Asa  C.  Dunham,  still  remaining  in  full 
force  and  virtue  and  effect,  and  not  satisfied  of  record  nor 
in  any  manner  vacated,  and  the  said  sum  of   money  re- 
maining due  and  unpaid,   your  orator,   by  his  attorney, 
Thomas   A.  Hartwell,  for  the  purpose  of  obtaining  satis- 
faction, of  the  said  judgment,  sued  out  of  the  said  Supreme 
Court  a  writ  of  fieri  facias  de  bonis  et  terris,  tested  of  the 
term   of  May,   eighteen  hundred  and  thirty-five,  and  re- 
turnable to   the  term  of   September  then  next   after,   di- 
rected to  the  sheriff  of  the  said  county  of  Hunterdon,  by 
which 'said  writ  the  said  sheriff   of  said  county  of  Hunter- 
don was   commanded,  that   of  the  goods   and  chattels  of 
the  said  Asa  C.  Dunham,  in  his  county,  he  should  cause 
to  be  made  the  sum  of  one  thousand  two  hundred  and 
fifty-nine  dollars  and  nineteen  cents,  damages,  to  satisfy 
the  said  judgment  so  recovered  by  your  orator  against  the 
said  Asa  C.  Dunham  as  aforesaid ;  and  if  sufficient  goods 
and  chattels  of  the  said  Asa  C.  Dunham  could  not  be 
found  in  said  county,  that   then  the  said  sheriff  was  fur- 
ther commanded,  that  he  should  cause  the  whole,  or  the 
residue,  as  the  case  might  require,  of  the  said  damages  to 
be  made  of   the  lands,  tenements,   hereditaments,  and  real 
estate  whereof   the  said  Asa  C.  Dunham  was  seized  on  the 
twelfth  day  of  May,  eighteen   hundred  and   thirty-five,  or 
at  any  time   after,  in.  whose   hands  soever  the  same  might 
be ;   and  that  the  said  sheriff  should  have   those  moneys 
before  our  said  justice  of  the  said  Supreme  Court  in  the 
term  of   September  next  after,  to  render  to  your  orator 
for  his   damages   aforesaid  to   satisfy  said  judgment,  and 
that  the  said  sheriff  should  also  have  then  and  there  that 
writ.     And  your  orator  further  shows   unto   your  honor, 
that  he  has  been  informed,  and  believes  it  to  be  true,  that 
the  said  writ  of  fieri  facias,  before  it  was  delivered  to  the 
said   sheriff,  was   duly  recorded  according  to  the   form  of 
the  statute  in  such  case  made  and   provided,  directing  the 
said  sheriff  to  levy  the  said  sum  of  one  thousand  two  hun- 
dred and  fifty-nine  dollars  and  ninety-nine  cents,  with  in- 


NOVEMBER  TEEM,  1855.  441 


Dunham  v.  Cox. 


terest  from  the  date  of  the  said  judgment,  besides  his  fees 
and  charges :  and  that  the  said  writ,  so  endorsed,  was  be- 
fore the  return  day  thereof,  to  wit,  on  the  fifteenth  day  of 
May,  eighteen  hundred  and  thirty-five,  delivered  to  Asa 
Jones,  esquire,  sheriff  of  the  said  county  of  Hunterdon,  to 
be  executed  according  to  law. 

And  your  orator  further  shows  unto  your  honor,  that 
he  has  been  informed,  and  believes  that  the  said  writ  of 
fieri  facias  was,  in  due  form  of  law,  returned  by  the  said 
sheriff  into  the  clerk's  office  of  the  said  Supreme  Court  at 
Trenton,  in  the  term  of  September,  eighteen  hundred  and 
thirty-five,  with  his  return  thereto,  as  follows :  Nulla- 
bona.  A.  Jones,  sheriff. — Fees  12  cts. — as  by  the  said  writ, 
remaining  unsatisfied  in  the  said  clerk's  office  at  Trenton, 
by  the  said  sheriff's  return  thereon  endorsed,  reference 
being  had  thereto,  will  more  fully  and  at  large  appear, 
and  to  which,  or  a  copy  thereof,  now  in  the  possession  of 
your  orator,  and  ready  to*  be  produced  when  and  where 
this  honorable  court  shall  direct,  your  orator  prays  leave 
to  refer. 

And  your  orator  further  shows  unto  your  honor,  that 
the  said  judgment  has  never  been  paid  or  satisfied  to  your 
orator,  or  to  any  person  or  persons  for  his  use  or  benefit, 
nor  has  he  ever  derived  any  benefit  from  the  same ;  that 
the  said  judgment  remains  due  and  owing  to  your  orator, 
and  in  full  force  and  effect  against  the  said  Asa  C.  Dun- 
ham, in  no  wise  vacated,  annulled,  reversed,  or  satisfied. 

And  your  orator  further  shows  unto  your  honor,  that 
there  is  now  justly,  and  equitably  and  actually,  due  to 
your  orator  upon  his  said  judgment  the  sum  of  twelve 
hundred  and  nineteen  dollars  and  twenty-one  cents,  besides 
the  taxed  costs,  together  with  the  legal  interest  thereon 
from  the  date  of  the  said  judgment,  over  and  above  all  just 
claims  of  the  said  Asa  0.  Dunham,  by  way  of  set-off  or 
otherwise. 

And  your  orator  further  shows  unto  your  honor,  that 
afterwards,  to  wit,  on  or  about  the  tenth  day  of  January, 


COURT  OF  ERRORS  AND  APPEALS. 

Dunham  v.  Cox. 

eighteen  hundred  and  fifty,  he  caused  to  be  issued  out  of 
said  Supreme  Court,  upon  his  said  judgment,  a  second  writ, 
commonly  called  an  alias  fieri  facias  de  bonis  et  terris, 
directed  to  the  sheriff  of  the  said  county  of  Hunterdon, 
tested  of  the  term  of  January,  eighteen  hundred  and  fifty, 
and  returnable  to  the  term  of  April  next  after,  command- 
ing the  said  sheriff,  that  of  the  goods  and  chattels  of  the 
said  Asa  C.  Dunham,  in  his  county,  he  should  cause  to  be 
made  the  sum  of  one  thousand  two  hundred  fifty-nine 
dollars  and  ninety-nine  cents,  the  damages  aforesaid,  to 
satisfy  the  said  judgment  so  recovered  by  your  orator 
against  the  said  Asa  C.  Dunham  ;  and  if  sufficient  goods 
and  chattels  of  the  said  Asa  C.  Dunham  could  not  be 
found  in  the  said  county,  whereof  the  damages  aforesaid 
might  be  made,  then  the  said  sheriff  was  further  com- 
manded, that  he  should  cause  the  whole,  or  the  residue  of 
the  said  damages,  to  be  made  of  the  lands,  tenements, 
hereditaments,  and  real  estate  whereof  the  said  Asa  C. 
Dunham  was  seized  on  the  twelfth  day  of  May,  eighteen 
hundred  and  thirty-five,  or  at  any  time  after,  in  whose 
hands  soever  the  same  might  be ;  and  that  the  said  sheriff 
should  have  that  money  before  our  justices  of  our  said 
Supreme  Court  at  Trenton,  on  the  first  Tuesday  of  April, 
eighteen  hundred  and  fifty,  to  render  to  your  orator  for 
the  damages  aforesaid,  and  that  he  should  also  have  then 
and  there  that  writ.  And  your  orator  further  shows,  that 
the  said  last  mentioned  writ,  before  the  delivery  thereof  to 
the  said  sheriff,  was  duly  recorded  according  to  the  form 
of  the  statute  in  such  case  made  and  provided,  and  that, 
after  the  same  was  so  recorded,  it  was  delivered  to  Garret 
Servis,  esquire,  sheriff  of  the  said  county  of  Hunterdon,  to 
be  executed. 

.  And  your  orator  further  shows  to  your  honor,  that  the 
said  Garret  Servis,  esquire,  sheriff  as  aforesaid,  by  virtue 
of  the  said  writ,  made  the  following  levy,  to  wit : 

"  By  virtue  of  the  above  stated  writ,  I  have  levied  on 
the  following  property  of  Asa  C.  Dunham,  viz.  3  stacks  of 


NOVEMBER  TERM,  1855.  443 


Dunham  v.  Cox. 


ivheat,  2  stacks  of  oats,  about  14  acres  of  green  grain  in 
tiie  ground,  12  head  of  cattle  (steers),  and  190  sheep,  sub- 
ject to  all  prior  legal  encumbrances — value  one  dollar. — 
January  18th,  1850. 

I  have  also  levied,  by  virtue  of  the  above  stated  writ 
on  the  right  and  title  of  the  said  Asa  C.  Durham  to  the 
following  real  estate,  vis.  a  tract  and  parcel  of  land,  situ- 
ate in  the  townships  of  Bethlehem  and  Franklin,  in  the 
county  of  Hunterdon,  adjoining  lands  now  or  late  of 
James  W.  Hope,  Robert  Foster,  and  others,  containing 
sixty-nine  and  a  half  acres  of  land,  more  or  less  (except- 
ing thereout  four  several  lots  heretofore  sold  and  con- 
veyed to  Michael  Hagerty,  Alexander  Probasco,  Joseph  Y. 
D.  Stout,  and  James  W.  Hope). 

Also,  a  certain  tract  or  parcel  of  land,  situate  in  the 
townships  of  Bethlehem  and  Franklin, ,  in  said  county, 
adjoining  lands  of  Joseph  Boss,  Daniel  parhart,  and  others, 
containing  ninety-four  acres  of  land,  more  or  less. 

Also,  a  lot  of  land,  situate  in  the  township  of  Bethle- 
hem, in  said  county,  adjoining  lands  of  Peter  Case  and 
others,  containing  sixty-five  hundredths  of  an  acre  of  land, 
more  or  less. 

Also,  a  certain  lot  or  parcel  of  land,  situate  in  the 
township  of  Lebanon,  in  said  county,  adjoining  lands  now 
or  late  of  Abraham  Banghart  and  others,  containing  eleven 
acres  of  land,  more  or  less. 

Also,  a  certain  lot  of  land  situate  in  the  township  of 
Bethlehem,  in  said  county,  adjoining  lands  now  or  late  of 
Martha  Wilson  and  others,  containing  five  acres  of  land, 
more  or  less. 

Also,  a  lot  of  land,  in  said  township  of  Bethlehem,  in 
said  county,  adjoining  lands  now  or  late  of  Martha  AVilson 
and  others,  containing  twenty-four  acres  of  land,  more  or 
less. 

Also,  three  lots  of  land,  situate  in  said  townshjp  of 
Bethlehem,  in  said  county,  being  a  part  of  the  bog  mea- 
dow tract,  and  called  lota  No.  7,  8,  and  9  ;  said  lot,  No.  7, 


4M   COUKT  OF  ERRORS  AND  APPEALS. 

Dunham  v.  Cox. 

containing  ten  acres  of  land,  more  or  less ;  No.  8,  con- 
taining ten  acres  of  land,  more  or  less  ;  No.  9,  five  acres, 
more  or  less.  Also,  a  lot  of  land,  situate  in  Clinton,  town- 
ship of  Bethlehem,  in  said  county,  containing  one  and  a 
half  acres  of  land,  more  or  less,  being  the  same  conveyed 
by  Robert  Foster,  jun.,  to  John  "W.  Bray  and  John  B. 
Taylor,  their  heirs  and  assigns,  by  deed  bearing  date  the  5tb 
day  of  April,  1828. 

Also,  another  lot  in  the  village  of  Clinton,  township  of 
Bethlehem,  in  said  county,  adjoining  the  last  mentioned 
lot,  containing  eight-tenths  of  an  acre  of  land,  more  or 
less,  excepting  out  of  the  last  mentioned  two  lots  of  land 
certain  parts  heretofore  conveyed  to  John  Green  and  Israel 
Smith. 

Also,  a  certain  tract  or  parcel  of  land,  situate  in  the 
township  of  Clinton,  in  said  county,  adjoining  lands  now 
or  late  of  David  §harp,  Joseph  Fritts,  and  others,  con- 
taining seventy-seven  acres  of  land,  more  or  less ;  all 
subject  to  all  prior  legal  encumbrances — value  one  dollar. — 
March  4th,  1850." 

Reference  being  had  to  the  said  writ,  levy,  and  return 
will  more  fully  appear,  and  to  which  your  orator  prays 
leave  to  refer,  if  it  shall  be  necessary  for  him  so  to  do. 

And  your  orator  further  shows,  that  shortly  before,  and 
at  the  time  your  orator  obtained  his  said  judgment,  to 
•wit,  in  the  month  of  May,  eighteen  hundred  and  thirty- 
five,  the  said  Asa  C.  Dunham  owned  and  possessed,  in  his 
own  right,  sundry  goods  and  chattels,  and  was  the  owner 
in  fee  simple  of  the  lands  and  tenements,  with  the  appur- 
tenances hereinafter  described,  lying  and  being  in  the  said 
county  of  Hunterdon. 

And  your  orator  further  shows  unto  your  honor,  that 
the  said  Asa  C.  Dunham,  being  so  seized  and  possessed 
of  real  and  personal  property  to  the  value  of  six  thousand 
dollars  and  upwards,  to  wit,  on  or  about  the  sixteenth 
day  of  September,  eighteen  hundred  and  thirty-four,  in 
order  to  defeat  your  orator  in  his  said  claim,  which  he 


NOVEMBER  TERM,  1855.  M5 


Dunham  v.  Cox. 


then  and  still  has  against  him,  the  said  Asa  C.  Dunham, 
and  in  order  to  protect  the  said  property  against  the  said 
claim,  and  to  secure  it  for  his  own  use,  combining  and 
confederating  with  one  Azariah  "W.  Dunham  and  Nehe- 
miah  Dunham,  his  brothers,  with  divers  other  persons 
at  present  unknown  to  your  orator,  but  whose  names, 
when  discovered,  your  orator  prays  may  be  inserted  herein, 
with  apt  and  proper  words  to  charge  them  in  the  premises, 
contriving  to  injure  and  oppress  your  orator  in  the 
premises,  and  under  various  pretences  sold  and  delivered 
to  the  said  Azariah  "W.  Dunham  and  N'ehemiah  Dunham, 
and  to  divers  other  persons  at  present  unknown  to 
your  orator,  and  who  now  claim  the  same  as  their  own, 
large  quantities  of  personal  estate  of  great  value,  to  wit, 
of  the  value  of  one  thousand  dollars  or  thereabouts,  which 
property  ought  in  justice  to  be  yielded  up  by  the  said 
Azariah  and  the  said  Nehemiah  to  satisfy  the  said  claim 
of  your  orator.  And  your  orator  has  been  informed  and 
believes,  and  so  charges,  that  the  said  sale  of  the  afore- 
said personal  property  was  without  any  just  consideration, 
and  intended  to  be  made  for  the  sole  purpose  of  depriv- 
ing your  orator  and  others,  creditors  of  the  said  Asa  C. 
Dunham,  of  his  and  their  just  and  honest  claims. 

And  your  orator  further  shows  unto  your  honor,  that, 
as  he  hag  been  informed  and  verily  believes,  the  said  Asa 
C.  Dunham,  on  or  about  the  said  day  and  year  last  afore- 
said, combining  and  confederating  with  the  said  Azariah 
"W.  Dunham  and  Nehemiah  Dunham,  and  with  divers 
persons  at  present  unknown  to  your  orator,  but  whose 
names,  when  discovered,  your  orator  prays  may  be  in- 
serted herein  with  proper  and  apt  words  to  charge  them 
in  the  premises,  contriving  to  oppress  and  injure  your 
orator  in  the  premises,  fraudulently,  by  his  certain  deeds 
of  indenture  of  bargain  and  sale  under  his  hand  and 
seal  executed  by  and  between  himself,  of  the  first  part, 
and  the  said  Azariah  "VV.  Dunham,  of  the  second  part, 
purporting  to  bear  date  on  the  sixteenth  day  of  Septera- 

VOL.  n.  z  P 


446      COURT  OF  ERRORS  AND  APPEALS. 

Dunham  v.  Cox. 

ber,  eighteen  hundred  and  thirty-four,  the  first  purporting 
to  be  for  the  consideration  of  two  thousand  three  hundred 
dollars,  and  is  in  the  words  and  figures  and  in  substance 
following,  to  wit : 

"  This  indenture,  made  this  sixteenth  day  of  September, 
in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  thirty-four,  between  Asa  C.  Dunham,  of  the  town- 
ship of  Kingwood,  in  the  county  of  Hunterdon,  and  state 
of  New  Jersey,  party  of  the  first  part,  and  Azariah  "W. 
Dunham,  of  the  township  of  Bethlehem,  in  the  county  of 
Hunterdon,  and  state  of '  New  Jersey  aforesaid,  party  of 
the  second  part ;  witnesseth,  that  the  said  Asa  C.  Dunham, 
for  and  in  consideration  of  the  sum  of  two  thousand 
three  hundred  dollars,  good  and  lawful  money  of  the 
United  States  of  America,  to  him,  the  said  Asa  C.  Dun- 
ham, in  hand  paid,  or  secured  to  be  paid,  at  and  before 
the  sealing  and  delivery  of  these  presents,  the  receipt  where- 
of he,  the  'said  Asa  C.  Dunham,  doth  hereby  acknowledged 
and  discharge  him,  the  said  Azariah  W.  Dunham, 
his  heirs  and  assigns  for  ever,  hath  given,  granted, 
bargained,  sold,  aliened,  enfeoffed,  released,  conveyed, 
and  confirmed,  and  by  these  presents  doth,  grant,  bargain, 
sell,  alien,  enfeoff,  release,  convey,  and  confirm  unto  him, 
the  said  Azariah  W.  Dunham,  his  heirs  and  assigns  for 
ever,  all  those  several  lots,  tracts,  or  parcels  of  land  situate, 
lying,  and  being  in  the  township  of  Lebanon,  Kingwood, 
and  Bethleham,  in  the  county  of  Hunterdon,  and  state 
of  New  Jersey  aforesaid,  the  first  of  which  being  the 
equal  undivided  half  part  of  all  those  two  lots  or 
parcels  of  land  situate  in  the  townships  of  Bethlehem  and 
Kingwood,  in  said  county ;  the  first  of  which,  with  the 
'buildings,  is  situate  in  the  townships  of  Bethlehem  and 
'Kingwood  aforesaid,  and  is  bounded  and  described  as  fol- 
'lows :  Beginning  at  a  corner  of  land  now  belonging  to 
.James  "W.  Hope,  at  the  abutment  of  an  old  bridge  on  the 
west  bank  of  the  South  branch  of  Raritan  river,  from  thence 
running,  &c. 


COURT  OF  EEEOES  AND  APPEALS.   447 

Dunham  v.   Cox. 

The  second  of  said  lots  or  parcels  of  land  is  bounded 
and  described  as  follows  :  beginning  at  a  stake  on  the 
north  side  of  the  New  Jersey  turnpike-road,  and  in  Cle- 
ment BonnelTs  line  ;  from  thence  running,  &c, 

Also,  all  the  undivided  half  part  of  all  that  certain  lot 
or  parcel  of  land  situate,  lying,  and  being  in  the  town- 
ship of  Bethlehem,  in  the  county  and  state  aforesaid,  and 
is  bounded  and  described  as  follows :  beginning  at  a  flat 
limestone  rock  on  the  northerly  side  of  the  New  Jersey 
turnpike  road,  corner  to  a  lot  belonging  to  John  Green  ; 
from  thence  running,  &c. 

Also,  all  the  undivided  half  part  of  all  that  certain  lot 
or  parcel  of  land  situate,  lying,  and  being  in  the  town- 
ship of  Lebanon,  in  the  county  and  State  aforesaid,  and  is 
bounded  and  described  as  follows,  beginning,  &c. 

And,  also,  all  the  estate,  right,  title,  interest,  property, 
claim,  and  demand  whatsoever,  either  in  law  or  in  equity, 
of  him,  the  said  Asa  C.  Dunham,  of,  in,  and  to  the  said 
several  lots,  tracts,  or  parcels  of  land,  and  every  part  and 
parcel  thereof  :  to  have  and  to  hold  all  and  singular  the 
said  several  lots,  tracts,  or  parcels  of  land,  with  the  here- 
ditaments and  premises  hereby  granted,  with  the  appur- 
tenances, unto  him,  the  said  Azariah  W.  Dunham,  his 
heirs  and  assigns,  to  the  sole  and  only  proper  use,  benefit, 
and  behoof  of  him,  the  said  Azariah  AV.  Dunham,  hia 
heirs  and  assigns  for  ever.  And  the  said  Asa  C.  Dunham, 
for  himself,  his  heirs,  executors  and  administrators,  doth 
hereby  covenant,  grant,  promise  and  agree,  to  and  with 
the  said  Azariali  W.  Dunham,  his  heirs,  executors  ad- 
ministrators and  assigns,  that  at  the  time  of  the  sealing 
and  delivery  of  these  presents,  he,  the  said  Asa  C.  Dun- 
ham, is  seized  in  his  own  right  of  an  absolute  .and  inde- 
feasible estate  of  inheritance  in  fee  simple  in  the  said 
several  premises  hereby  granted,  with  the  appurtenances, 
and  hath  good  right,  full  power,  and  sufficient  authority 
in  the  law  to  grant,  bargain,  sell,  and  convey  the  same  to 
the  said  Azariah  W.  Dunham,  his  heirs  and  assigns,  in 


448  NOVEMBER  TERM.  1855. 

Dunham  c.  Cox. 

manner  aforesaid  ;  and  that  it  shall  and  may  be  lawful 
for  the  said  Azariah  W.  Dunham,  his  heirs  and  assigns,  at 
all  times  for  ever  hereafter,  peaceably  and  quietly  to  have, 
hold,  use,  occupy,  possess  and  enjoy  the  said  premises, 
with  the  appurtenances,  and  every  part  and  parcel  there- 
of,, without  the  lawful  let,  suit,  action,  interruption,  or 
disturbance  of  the  said  party  of  the  first  part,  their  heirs 
and  assigns,  or  any  other  person  or  persons  whomsoever 
lawfully  claiming  or  to  claim  the  same  ;  and  that  the  said 
premises  are  free  and  clear,  and  freely  and  clearly  acquit- 
ted and  discharged  of  and  from  all  former  mortgages,  judg- 
ments, executions,  and  of  and  from  all  other  encumbrances 
whatever.  And  lastly,  that  he,  the  said  party  of  the  first 
part,  and  his  heirs  all  and  singular,  to  said  lot  or  par- 
cel of  land,  with  the  heriditaments  and  premises  hereby 
granted,  with  the  appurtenances,  unto  the  said  party  of 
the  second  part,  his  heirs,  and  against  him,  the  said  party 
of  the  first  part,  and  against  all  and  every  other  person 
or  persons  whomsoever  lawfully  claiming  or  to  claim  the 
same,  shall  and  will  warrant  and  for  ever  defend." 

And  which  said  deed  was  duly  recorded  in  the  clerk's 
office  in  the  said  county  of  Hunterdon,  vol.  58,  fol.  457, 
on  the  24th  day  of  September,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  thirty-four. 

The  second  conveyance,  purporting  to  be  for  the  con- 
sideration of  five  hundred  dollars,  is  in  the  words  and  in 
substance  following,  to  wit  : 

"  This  indenture,  made  this  sixteenth  day  of  September, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
thirty-four,  between  Asa  C.  Dunham,  of  the  township  of 
Kingwood,  in  the  county  of  Hunterdon,  and  state  of  New 
Jersey,  party  of  the  first  part,  and  Nehemiah  Dunham, 
of  the  county  and  state  aforesaid,  party  of  the  second  part, 
witnesseth,  that  the  party  of  the  first  part,  for  and  in  con- 
sideration of  the  sum  of  five  hundred  dollars,  good  and 
lawful  money  of  the  United  States,  to  him  in  hand  well 
-and  truly  paid  by  the  said  party  of  the  second  part  before. 


NOVEMBER  TERM,  1855.  449 


Dunham  v.  Cox. 


the  sealing  and  delivery  of  these  presents,  the  receipt 
whereof  he  doth  hereby  acknowledge,  hath  granted,  bar- 
gained, sold,  aliened,  enfeoffed,  released  and  confirmed, 
and  by  these  presents  doth  grant,  bargain,  sell,  alien,  en- 
feoff,  release,  and  confirm  unto  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  all  those  five  several 
lots,  tracts,  or  parcels  of  land,  situate  in  the  county  of 
Hunterdon  aforesaid,  herein  after  mentioned,  that  is  to 
say  :  all  those  three  lots  of  woodland  situate  in  the  town- 
ship of  Bethlehem,  in  the  county  of  Hunterdon  aforesaid 
being  part  of  the  bog  meadow  tract,  and  called  lots  No. 
7,  8,  and  9,  the  said  lot,  No.  7,  containing  9  acres  and 
eighty-six  hundredths  of  an  acre,  lot  No.  8,  containing 
nine  acres  and  sixty  hundredths  of  an  acre,  and  lot  No.  9, 
containing  five  acres  and  twenty-six  hundredths  of  an  acre. 
Also,  all  those  two  certain  lots  of  land  situate  in  Clinton, 
in  the  township  of  Bethlehem  aforesaid,  the  first  whereof, 
containing  one  acre  and  a  half  of  land,  more  or  less,  con- 
veyed by  Robert  Foster,  jiin.,  to  John  W.  Bray  and  John 
B.  Taylor,  their  heirs  and  assigns,  by  deed  bearing  date 
the  fifth  day  of  April,  eighteen  hundred  and  twenty-eight. 
The  second  of  said  lots,  adjoining  the  first,  and  contain- 
ing eight-tenths  of  an  acre  of  land,  Samuel  Crook  and 
Elizabeth  his  wife,  by  indenture  bearing  date  the  twenty, 
ninth  day  of  March,  eighteen  hundred  and  twenty-eight, 
granted  and  conveyed  to  the  said  John  "W.  Bray  and  John 
13.  Taylor,  their  heirs  and  assigns,  in  fee  simple,  which 
eaid  five  several  lots,  tracts,  or  parcels  of  land,  the  said 
John  W.  Bray  and  Mary  his  wife,  and  John  B.  Taylor 
and  Susan  A.  his  wife,  by  indenture  bearing  date  the 
thirtieth  day  of  June,  in  the  year  of  our  Lord  eighteen 
hundred  and  thirty-four,  granted  and  conveyed  to  the 
said  Asa  C.  Dunham,  his  heirs  and  assigns,  (as  by  refer- 
ence to  the  last  mentioned  conveyance  will  more  fully  ap- 
pear) excepting  and  reserving,  however,  out  of  the  last 
mentioned  two- lots  of  land  certain  parts  or  parcels  of  the 
said  lots,  respective!  v,  which  have  been  heretofore  con- 

2  r* 


450          COUET  OF  EEEOES  AND  APPEALS 


Dunham  v.  Cox. 


veyed  to  John  Green  and  Israel  Smith,  and  by  the  said 
Smith  to  James  W.  Hope,  and  now  occupied  by  the  said 
John  Green  and  James  W.  Hope,  the  residue  of  the  said 
two  last  mentioned  lots,  which  is  hereby  intended  to  be 
conveyed  to  the  said  Nehemiah  Dunham,  containing,  by 
estimation,  one  acre  and  seven-tenths  of  an  acre  of  land, 
be  the  same  more  or  less  :  together  with  all  and  singular 
the  buildings,  improvements,  ways,  woods,  waters,  water- 
courses, rights,  liberties,  privileges,  hereditaments,  and 
appurtenances  to  the  same  belonging  or  in  any  wise  ap- 
pertaining, and  the  reversion  and  reversions,  remainder 
and  remainders,  rents,  issues,  and  profits  thereof,  and  of 
every  part  and  parcel  thereof ;  and  also  all  the  estate, 
right,  title,  interest,  use,  possession,  property,  claim,  and 
demand  whatsoever,  both  in  law  and  equity,  of  him,  the 
said  party  of  the  first  part,  of,  in,  and  to  the  said  premises, 
with  the  appurtenances  :  to  have  and  to  hold  the  said  lots 
or  parcels  of  land,  with  the  hereditaments  and  premises 
hereby  granted,  and  every  part  and  parcel  thereof,  with 
the  appurtenances,  unto  the  said  party  of  the  second  part, 
his  heirs  and  assigns,  to  the  only  proper  use,  benefit,  and 
behoof  of  him,  the  said  party  of  the  second  part,  his 
heirs  and  assigns,  for  ever.  And  the  said  Asa  C.  Dunham, 
party  aforesaid  of  the  first  part,  for  himself,  his  heirs,  ex- 
ecutors, and  administrators,  doth  hereby  covenant,  pro- 
mise, and  grant,  to  and  with  Nehemiah  Dunham,  party 
of  the  second  part,  his  heirs  and  assigns,  that  at  the  time 
of  the  sealing  and  delivery  hereof,  he,  the  said  party  of 
the  first  part,  is  seized  in  his  own  right  of  an  absolute 
find  indefeasible  estate  of  inheritance,  in  fee  simple  of  and 
in  all  and  singular  the  premises  hereby  granted,  with  the 
appurtenances,  and  hath  good  right,  full  power,  and  suffi- 
cient authority  in  the  law  to  grant,  bargain,  sell,  and  con- 
vey the  same  unto  the  said  party  of  the  second  part,  his 
heirs  and  assigns,  for  ever,  according  to  the  true  intent 
and  meaning  of  these  presents.  And  also,  that  it  shall 
and  may  be  lawful  for  the  said  party  of  the  second  part, 


NOVEMBER  TERM,  1855.  451 


Dunham  v.  Cox. 


his  heirs  and  assigns,  at  all  times  for  ever  hereafter,  peace- 
ably and  quietly  to  have,  hold,  use,  occupy,  possess,  and 
enjoy  the  said  premises,  with  the  appurtenances,  and 
every  part  and  parcel  thereof,  without  the  lawful  let,  suit 
action,  interruption,  or  disturbance  of  the  said  party  of 
the  first  part,  their  heirs  or  assigns,  or  any  other  person 
or  persons  whomsoever  lawfully  claiming  or  to  claim  the 
same.  And  that  the  said  premises  are  free  and  clear,  and 
freely  and  clearly  acquitted  and  discharged  of  and  from 
all  former  mortgages,  judgments,  executions,  and  of  and 
from  all  other  encumbrances  whatever.  And  lastly,  that 
he,  the  said  party  of  the  first  part,  and  his  heirs  all  and 
singular,  the  said  lots  or  parcels  of  land,  with  the  here- 
ditaments and  premises  hereby  granted,  with  the  appur- 
tenances, unto  the  said  party  of  the  second  part,  his  heirs, 
and  against  him  the  said  party  of  the  first  part,  and  against 
all  arid  every  other  person  or  persons  whomsoever  law- 
fully claiming  or  to  claim  the  same,  shall  and  will  warrant 
and  for  ever  defend." 

And  which  said  deed  was  duly  recorded  in  the  clerk's 
office  in  the  said  county  of  Hunterdon,  in  vol.  58,  fol.  463, 
on  the  twenty-fourth  day  of  September,  one  thousand  eight 
hundred  and  thirty-four. 

The  third  conveyance,  purporting  to  be  for  the  consider- 
ation of  two  thousand  six  hundred  and  thirty-four  dollars 
and  forty-four  cents,  and  is  in  the  substance  following,  to 
wit : 

"  This  indenture,  made  this  thirtieth  day  of  June,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and 
thirty-four,  between  John  W.  Bray  and  Mary  his  wife  and 
John  B.  Taylor  and  Susan  Adeline  his  wife,  all  of  Clin- 
ton, in  the  township  of  Lebanon,  county  of  Hunterdon, 
and  state  of  New  Jersey,  party  of  the  first  part,  and  Asa 
C.  Dunham,  of  the  township  of  Bethlehem,  in  the  county 
and  state  aforesaid,  party  of  the  second  part,  witnesscth, 
that  the  party  of  the  first  part,  for  and  in  consideration  of 
the  sum  of  two  thousand  six  hundred  and  thirty-four  dol- 


452       COUET  OF  EKROES  AND  APPEALS. 

Dunham  v.  Cox.        . 

lars  and  forty-four  cents,  lawful  money  of  the  United 
States,  to  them  in  hand  well  and  truly  paid  by  the  said 
party  of  the  second  part,  before  the  sealing  and  delivery 
of  these  presents,  the  receipt  whereof  they  do  hereby  ac- 
knowledge, have  granted,  bargained,  sold,  aliened,  en- 
feoffed,  released,  and  confirmed,  and  by  these  presents  do 
grant,  bargain,  sell,  alien,  enfeoff,  release,  and  confirm, 
unto  the  said  party  of  the  first  part,  his  heirs  and  assigns, 
all  those  six  several  lots  or  parcels  of  land,  situate  in  the 
county  of  Hunterdon  aforesaid,  herein  after  mentioned, 
that  is  to  say  :  all  that  tract  of  land,  situate  in  the  town- 

v  t 

ship  of  Lebanon  aforesaid,  adjoining  and  bounded  by 
lands  of  David  (late  Moses)  Sharp,  the  heirs  of  John  J. 
Lowe,  deceased,  the  heirs  of  Jacob  Kunkle,  deceased, 
John  Emery,  Joseph  Fritts  (late  John  W.  Bray),  and 
others,  containing  seventy-seven  acres,  more  or  less,  being 
the  same  land  which  John  J.  Lowe  and  wife,  by  deed, 
bearing  date  the  fifteenth  day  of  April,  A.  D.  eighteen 
hundred  and  twenty-six,  and  recorded  in  the  record  of 
deeds  for  the  county  of  Hunterdon,  in  vol.  41,  pages  149, 
&c.,  conveyed  to  the  said  John  W.  Bray,  his  heirs  and  as- 
signs, in  fee  simple.  Also,  all  those  three  lots  of  wood- 
land, situate  in  the  township  of  Bethlehem,  and  county  of 
Hunterdon  aforesaid,  being  part  of  the  bog  meadow  tract, 
and  called  lots  Nos.  7,  8,  and  9,  the  said  lot,  No.  7,  con- 
taining nine  acres  and  eighty-six  hundredths  of  an  acre, 
lot  No.  8  containing  nine  acres  and  sixty  hundredths  of 
an  acre,  and  lot  No.  9  containing  five  acres  and  twenty- 
six  hundredths  of  an  acre,  being  the  same  three  lots  of 
land  which  William  Hum,  by  indenture  bearing  date  the 
third  day  of  April,  A.  D.,  eighteen  hundred  and  twenty 
eight,  and  recorded  in  the  record  of  deeds  for  Hunterdon 
county,  vol.  45,  pages  42,  &c.,  conveyed  to  the  said  John 
"W.  Bray  and  John  B.  Taylor,  their  heirs  and  assigns,  in 
fee  simple.  Also,  all  those  two  certain  lots  of  land,  situ- 
ate at  Clinton,  in  the  township  of  Bethlehem  aforesaid, 
the  first  whereof,  containing  one  acre  and  a  half  of  land, 


NOVEMBER  TERM,  1855.  453 


Dunham  v.  Cox. 


more  or  less,  Robert  Foster,  jun.,  by  indenture  bearing 
date  the  fifth  day  of  April,  A.  D.  eighteen  hundred  and 
twenty-eight,  and  recorded  in  the  record  of  deeds  for  the 
county  of  Hunterdon,  in  vol.  49,  fol.  254,  &c.,  conveyed 
to  the  said  John  W.  Bray  and  John  B.  Taylor,  their  heirs 
and  assigns  in  fee  simple,  the  second  of  which  said  lots, 
adjoining  the  first,  and  containing  eight-tenths  of  an  acre, 
Samuel  Crooks  and  Elizabeth  his  wife,  by  indenture  bear- 
ing date  the  twenty-ninth  day  of  March,  A.  D.  eighteen 
hundred  and  twenty-eight,  and  recorded  in  the  record  of 
deeds  for  the  county  of  Hunterdon,  in  vol.  45,  fol.  44,  &e., 
conveyed  to  the  said  John  "W".  Bray  and  John  B.  Taylor, 
their  heirs  and  assigns,  in  fee  simple  (as  by  reference  to 
the  said  several  conveyances  will  appear),  excepting  and 
reserving,  however,  out  of  the  said  two  last  mentioned 
lots,  of  land  certain  parts  or  parcels  of  the  said  lots,  re- 
spectively, which  have  been  heretofore  conveyed  to  John 
Green  and  to  Israel  Smith,  and  by  the  said  Smith  to  James 
"W".  Hope,  and  are  now  occupied  by  John  Green  and  James 
"W.  Hope  ;  the  residue  of  the  said  two  last  mentioned 
lots,  which  is  hereby  intended  to  be  conveyed  to  the  said 
Asa  C.  Dunham,  containing,  by  estimation,  one  acre  and 
seven-tenths  of  an  acre,  be  the  same  more  or  less.  :  to- 
gether with  all  and  singular  the  buildings,  improvements, 
ways,  wroods,  waters,  watercourses,  rights,  liberties,  privi- 
leges, hereditaments,  and  appurtenances  to  the  same  be- 
longing or  in  any  wise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  issues, 
and  profits  thereof,  and  of  every  part  and  parcel  thereof  ; 
and  also  all  the  estate,  right,  title,  interest,  use,  possess- 
sion,  property  claim,  and  demand  whatsoever,  botli  in 
law  and  in  equity,  of  him,  the  said  party  of  the  first  part, 
of,  in,  and  to  the  said  premises,  with  the  appurtenances  : 
to  have  and  to  hold  the  said  lots  or  parcels  of  land,  with 
the  heriditaments  and  premises  hereby  granted,  and  every 
part  and  parcel  thereof,  with  the  appurtenances,  unto  the 
said  party  of  the  second  part,  his  heirs  and  assigns,  to  the 


454      COUKT  OF  EEEOES  AND  APPEALS. 

Dunham  v.  Cox. 

only  proper  use,  benefit,  and  behoof  of  him,  the  said  party 
of  the  second  part,  his  heirs  and  assigns  for  ever.  And 
the  said  John  W.  Bray  and  John  B.  Taylor,  parties  of  the 
first  .part,  for  themselves,  their  heirs,  executors  and  ad- 
ministrators, do  hereby  covenant,  promise,  and  grant,  to 
and  with  the  said  Asa  C.  Dunham,  party  of  the  second 
part,  his  heirs  and  assigns,  that  at  the  time  of  the  sealing 
and  delivery  hereof  they,  the  said  parties  of  the  first  part, 
are  seized  in  their  own  right  of  an  absolute  and  indefeasi- 
ble estate  of  inheritance  of  fee  simple  of  and  in  all  and 
singular  the  premises  hereby  granted,  with  the  appurte- 
nances, and  have  good  right,  full  power,  and  sufficient 
authority  in  the  law  to  grant,  bargain,  sell,  and  convey 
the  same  unto  the  said  party  of  the  second  part,  his  heirs 
and  assigns,  for  ever,  to  the  true  intent  and  meaning  of 
these  presents.  And  also,  that  it  shall  and  may  be  lawful 
for  the  said  party  of  the  second  part,  his  heirs  and  assigns, 
at  all  times  for  ever  hereafter,  peaceably  and  quietly  to 
have,  hold,  use,  occupy,  possess,  and  enjoy  the  said  pre- 
mises, with  the  appurtenances,  and  every  part  and  parcel 
thereof,  without  the  lawful  let,  suit,  eviction,  interruption, 
or  disturbance  of  the  said  parties  of  the  first  part,  their 
heirs  and  assigns,  and  any  other  person  or  persons  whom- 
soever lawfully  claiming  or  to  claim  the  same  ;  and  that 
the  said  premises  are  free  and  clear,  and  freely  and  clearly 
acquitted  and  discharged  of  and  from  all  former  mort- 
gages, judgments,  executions,  and  of  and  from  all  other 
encumbrances  whatever.  And  lastly,  that  they,  the  said 
parties  of  the  first  part,  and  their  heirs  all  and  singular, 
the  lots  or  parcels  of  land,  with  the  hereditaments  and 
premises  hereby  granted,  with  the  appurtenances,  unto 
the  said  party  of  the  second  part,  his  heirs,  and  against 
them,  the  said  parties  of  the  first  part,  and  against  all  and 
every  other  person  or  persons  whomsoever  lawfully  claim- 
ing or  to  claim  the  same,  will  warrant  and  for  ever  de- 
fend." 
Which  said  deed  was  duly  acknowledged  by  the  said 


NOVEMBER.  TEEM,  1855.  455 


Dunham  u.  Cox. 


John  "W.  Bray  and  wife,  and  John  B.  Taylor  and  wife,  be- 
fore Nathaniel  Saxton,  esquire,  one  of  the  masters  of  the 
Court  of  Chancery  of  New  Jersey,  on  the  thirtieth  day  of 
June,  eighteen  hundred  and  thirty-four,  and  duly  recorded 
in  the  clerk's  office  of  the  said  county  of  Ilunterdon,  in 
vol.  58  of  deeds,  fol.  675,  on  the  twenty-fourth  day  of  Sep- 
tember, eighteen  hundred  and  thirty -four. 

The  fourth  conveyance,  purporting  to  be  for  the  con- 
sideration of  eight  hundred  dollars,  is  in  substance  as  fol- 
lows : 

"  This  indenture,  made  this  seventeenth  day  of  October, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
thirty-four,  between  Asa  C.  Dunham,  of  the  township  of 
Kingwood,  in  the  county  of  Ilunterdon,  and  state  of  New 
Jersey,  party  of  the  first  part,  and  Azariah  W.  Dunham, 
of  the  township  of  Bethlehem,  in  the  county  of  Ilunter- 
don, and  state  of  New  Jersey  aforesaid,  party  of  the 
second  part  :  witnesseth,  that  the  party  of  the  first  part,  for 
and  in  consideration  of  the  sum  of  eight  hundred  dollars, 
good  and  lawful  money  of  the  United  States,  to  him  in 
hand,  well  and  truly  paid  by  the  said  party  of  the  second 
part,  before  the  sealing  and  delivery  of  these  presents,  the 
receipt  whereof  they  do  hereby  acknowledge,  hath  granted, 
bargained,  sold,  aliened,  enfeoffed,  released,  and  con- 
firmed, and  by  these  presents  doth  grant,  bargain,  sell, 
alien,  enfeoff,  release,  and  confirm  unto  the  said  party  of 
the  second  part,  his  heirs  and  assigns,  all  that  certain  lot 
or  parcel  of  land  situate,  lying,  and  being  in  the  township 
of  Lebanon,  in  the  county  of  Kunterdon,  and  state  of 
New  Jersey  aforesaid,  and  is  bounded  and  described  as 
follows,  that  is  to  say,  by  land  of  David  (late  Moses)  Sharp, 
the  heii*s  of  John  J.  Lowe,  deceased ;  the  heirs  of  Jacob 
Hankie,  deceased  ;  John  Emery,  Joseph  Fritts  (late  John 
AV.  Bray),  and  others,  containing  seventy-seven  acres  of 
land,  be  the  same  more  or  less,  being  the  same  lot  or  parcel 
of  land  which  John  J.  Lowe  and  wife  granted  and 
conveyed  to  John  AV.  Bray  and  Mary  his  wife,  and  John 


456      COUKT  OF  EEKOES  AND  APPEALS. 

Dunham  v.  Cox. 

B.  Taylor  and  Susan  Adeline,  his  wife,  granted  and  con- 
veyed to  the  said  Asa  C.  Dunham,  by  deed  bearing  date 
the  thirtieth  day  of  June,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  thirty-four,  and  recorded  in 
record  of  deeds  for  the  county  of  Hunterdon,  in  vol.  58 
of  deeds,  pages  465,  6,  7  and  8,  reference  being  thereunto 
had  will  more  fully  appear;  together  with  all  and  singular 
the  buildings,  improvements,  ways,  waters,  watercourses, 
rights,  liberties,  privileges,  hereditaments,  and  appurte- 
nances to  the  same  belonging  or  in  any  wise  appertaining, 
and  the  reversion  and  reversions,  remainder  and  remainders, 
rents,  issues,  and  profits  thereof,  and  of  every  part 
and  parcel  thereof.  And  also,  all  the  estate,  right,  title, 
interest,  use,  possession,  property,  claim,  and  demand 
whatsoever,  both  in  law  and  in  equity,  of  him,  the  said 
party  of  the  first  part,  of,  in,  and  to  the  said  premises, 
with  the  appurtenances :  to  have  and  to  hold  the  said  lot 
or  parcel  of  land,  with  the  hereditaments  and  premises 
hereby  granted,  and  every  part  and  parcel  thereof,  with 
the  appurtenances,  unto  the  said  party  of  the  second  part, 
his  heirs  and  assigns,  to  the  only  proper  use,  benefit,  and 
behoof  of  him,  the  said  party  of  the  second  part,  his  heirs 
and  assigns,  for  ever.  And  the  said  Asa  C.  Dunham,  party 
aforesaid  of  the  first  part,  for  himself,  his  heirs,  executors, 
and  administrators,  doth  hereby  covenant,  promise,  and 
grant,  to  and  with  the  said  Nehemiah  Dunham,  party  of 
<  the  second  part,  his  heirs  and  assigns,  that  at  the  time  of 
the  sealing  and  delivery  hereof,  he,  the  said  party  of  the 
first  part,  is  seized  in  his  own  right  of  an  absolute  and 
indefeasible  estate  of  inheritance  in  fee  simple,  of  and  in 
all  and  singular  the  premises  hereby  granted,  with  the  ap- 
purtenances, and  hath  good  right,  full  power,  and  sufficient 
authority  in  the  law  to  grant,  bargain,  sell,  and  convey 
the  same  unto  the  said  party  of  the  second  part,  ,his 
heirs  and  assigns  for  ever,  according  to  the  true  intent 
and  meaning  of  these  presents..  And  also,  that  it  shall 
and  may  be  lawful  for  the  said  party  of  the  second  part, 


NOVEMBER  TEEM,  1855.  457 


Dunham  v.  Cox. 


his  heirs  and  assigns,  at  all  times  for  ever  hereafter,  peace- 
ably and  quietly  to  have,  hold,  use,  occupy,  possess,  and 
enjoy  the  said  premises,  with  the  appurtenances,  and  every 
part  and  parcel  thereof,  without  the  lawful  let,  suit,  evic- 
tion, interruption,  or  disturbance  of  the  said  party  of  the 
first  part,  their  heirs  and  assigns,  or  any  person  or  persons 
whomsoever  lawfully  claiming  or  to  claim  the  same.  And 
that  the  said  premises  are  free  and  clear,  and  freely  and 
clearly  acquitted  and  discharged  of  and  from  all  former 
mortgages,  judgments,  executions,  and  of  and  from  all 
other  encumbrances  whatsoever.  And  lastly,  that  he,  the 
said  party  of  the  first  part,  and  his  heirs  all  and  singular, 
the  said  lot  or  parcel  of  land,  with  the  hereditaments  and 
premises  hereby  granted,  with  the  appurtenances,  unto 
the  said  party  of  the  second  part,  his  heirs  and  assigns, 
and  against  him,  the  said  party  of  the  first  part,  and 
against  all  and  every  other  person  and  persons  whomso- 
ever lawfully  claiming  or  to  claim  the  same,  shall  and 
will  warrant  and  for  ever  defend." 

And  which  said  deed  was  afterwards,  to  wit  on  the  18th 
of  October,  1834,  recorded  in  the  record  of  deeds  in  the 
clerk's  office  in  the  said  connty  of  Hunterdon,  reference 
being  had  to  said  four  several  deeds  of  conveyance  re- 
maining of  record  in  said  county  of  Hunterdon,  and  to 
which,  or  to  certified  copies  thereof,  your  orator  begs  leave 
to  refer,  if  it  should  be  necessary  for  him  so  to  do. 

And  your  orator  further  shows  unto  your  honor,  that 
he  has  been  informed,  and  believes  it  to  be  true,  and  so 
charges,  that  in  the  year«one  thousand  eight  hundred  and 
thirty-four,  or  about  that  time,  the  said  Asa  C.  Dunham 
was  security  for  one  John  "W.  Bray  and  John  B.  Taylor 
for  about  the  sum  of  two  thousand  five  hundred  dollars, 
including  a  part  of  the  above  mentioned  claim  of  your 
orator,  and  that,  in  order  to  indemnify  and  save  harmless 
the  said  Asa  C.  Dunham,  and  enable  him  to  pay  and 
satisfy  the  paid  security  debts,  as  well  to  your  orator  aft 
others,  the  said  John  "NV.  Bray  and  John  B.  Taylor  and 

VOL.  n.  2  Q 


458          COUKT  OF  ERRORS  AND  APPEALS. 

Dunham  r.  Cox. 

wives  afterwards,  to  wit,  on  the  thirtieth  day  of  June, 
eighteen  hundred  and  thirty-four,  made,  executed,  and  de- 
livered to  the  said  Asa  C.  Dunham  their  certain  deed  of 
indenture,  in  the  words,  figures,  and  in  substance  herein 
before  mentioned  and  set  forth. 

And  your  orator  further  shows  unto  your  honor,  that  he 
has  been  credibly  informed,  and  believes  that  the  said  Asa 
C.  Dunham  never  paid  any  of  the  said  security  debts  of 
the  said  John  W.  Bray  and  John  B.  Taylor  out  of  the 
proceeds  arising  from  the  sale  of  the  said  lands  so  con- 
veyed by  them  to  the  said  Asa  C.  Dunham,  but,  on  the 
contrary,  afterwards,  to  wit,  on  the  sixteenth  day  of  Sep- 
tember, in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  thirty-four,  fraudulently  and  without  any  con- 
sideration having  been  actually  paid,  sold  and  conveyed  a 
part  of  the  same  to  the  said  Nehemiah  Dunham,  and  the 
residue  thereof  to  the  said  Azariah  "W.  Dunham,  who 
holds  the  same  for  the  use,  benefit,  and  advantage  of  the 
said  Asa  C.  Dunham,  and  in  order  to  defraud  your  orator 
and  others,  the  creditors  of  the  said  Asa  C.  Dunham,  and 
to  prevent  and  hinder  him  and  them  from  recovering  their 
just  and  honest  claims  against  the  said  Asa  C.  Dunham. 

And  your  orator  further  shows  unto  your  honor,  that 
he  has  been  informed,  and  verily  believes,  and  so  charges, 
that  notwithstanding  the  said  sale  of  the  said  personal 
property,  and  the  said  deeds  of  conveyance  for  the  said 
real  property,  by  the  said  Asa  to  the  said  Azariah  and  ~N"e- 
hemiah,  herein  before  mentioned  and  described,  yet  that 
the  said  Asa  has  ever  since  remained  in  and  had  the  ac- 
tual use,  control,  and  possession  of  the  whole  of  the  said 
property,  real  and  personal,  receiving  and  enjoying  the 
rents,  income,  proceeds,  and  profits  thereof. 

And  your  orator  further  shows  unto  your  honor,  that 
he  has  frequently  and  in  a  friendly  manner  applied  to  the 
said  Asa  C.  Dunham,  Azariali  W.  Dunham,  and  ]S"ehe- 
miah  Dunham  for  the  payment  of  his  said  judgment,  and 
that  they  should  deliver  into  the  hands  of  the  said  sheriff 


NOVEMBEK  TEEM,  1855.  459 


Dunham  r.  Cox. 


of  the  county  of  Hunterdon  the  said  real  and  personal 
property  so  fraudulently  assigned  and  passed  over  by  the 
said  Asa  C.  Dunham  to  the  said  Azariah  "W.  Dunham  and 
Nehemiah  Dunham,  by  them  now  held  and  claimed,  and 
that  the  said  Azariah  W.  Dunham  and  Nehemiah  Dunham 
shouH  permit  the  said  sale,  transfer,  and  conveyance  to  be 
declared  null  and  void,  and  the  said  real  and  personal  pro- 
perty to  be  sold  to  satisfy  the  said  claim  and  judgment  of 
your  orator,  as  in  equity  and  good  conscience  they  ought  to 
have  done,  and  as  your  orator  well  hoped  they  would  have 
done. 

But  now  so  it  is,  may  it  please  your  honor,  the  said 
Asa  C.  Dunham,  Azariah  "W.  Dunham,  and  Nehemiah 
Dunham  (brothers),  combining  and  confederating  with 
'other  persons  at  present  unknown  to  your  orator,  but 
whose  names,  when  discovered,  your  orator  prays  may  be 
inserted  herein,  with  proper  and  apt  words  to  charge 
them  as  parties  defendants  hereto,  contriving  how  to  op- 
press, injure,  and  aggrieve  your  orator  in  the  premises, 
wholly  neglect  and  refuse  to  pay  the  said  judgment,  or  to 
deliver  into  the  possession  of  the  said  sheriff  the  said 
real  and  personal  property,  or  to  allow  the  said  convey- 
ances to  be  set  aside  as  null  and  void,  and  have  and  do 
absolutely  and  unlawfully  oppose  the  execution  of  the 
said  writ  o£  fieri  facias  in  the  hands  of  the  said  Garret 
Servis,  sheriff  as  aforesaid,  and  threatened  to  prosecute 
him  should  he  make  sale  of  the  same.  And  sometimes 
thrsy  give  out  and  pretend  that  the  said  judgment  was 
nover  obtained  as  aforesaid ;  and  sometimes  they  give 
o»t  and  pretend  that  the  said  judgment  and  claim  of  your 
orator  has  been  paid  off  and  satisfied ;  and  sometimes 
they  give  out  and  pretend  that  the  said  real  and  personal 
property  was  not  transferred  by  the  said  Asa  to  the  said 
Azariah  and  Nehemiah  as  aforesaid,  and  that  the  same 
has  not  been  in  the  use,  occupation,  and  possession  of  the 
said  Asa  since  the  time  of  the  said  sale.  And  sometimes 
they  pretend  that  they  have  not  hindered  or  prevented 


460      COURT  OF  EEEOES  AND  APPEALS. 

Dunham  v.  Cox. 

the  said  sheriff  in  the  proper  execution  of  the  said  writ 
of  fieri  facias,  the  contrary  of  all  which  your  orator  charges 
to  be  true. 

All  which  actings  and  doings  of  the  said  Asa  C.  Dun- 
ham, Azariah  W.  Dunham,  and  Kehemiah  Dunham,  are 
contrary  to  equity  and  good  conscience,  and  tend  to  the 
manifest  injury  and  oppression  of  your  orator. 

In  tender  consideration  whereof,  and  for  inasmuch  a& 
your  orator  is  remediless  in  the  premises  at  the  common 
law,  and  cannot  have  adequate  relief  except  by  the  aid 
and  interposition  of  this  honorable  court,  where  matters 
of  this  kind  and  of  like  nature  are  properly  and  only  cogniz- 
able and  relievable — 

To  the  end,  therefore,  that  the  said  Asa  C.  Dunham, 
Azariah  W.  Dunham,  and  Nehemiah  Dunham,  and  their 
confederates,  when  discovered,  may,  upon  their  several 
and  respective  corporal  oaths,  full,  true,  and  perfect  an- 
swers make  to  all  and  singular  the  matters  and  things  be- 
fore stated  and  charged,  as  fully  and  particularly,  sentence 
by  sentence,  and  paragraph  by  paragraph,  as  if  they  were 
particularly  interrogated,  with  all  the  attending  circum- 
stances and  incidental  transactions,  and  not  only  to  the 
best  of  their  knowledge  and  remembrance,  respectively, 
but  also  according  to  the  best  of  their  understanding,  in- 
formation, hearsay,  and  belief,  severally  and  respectively ; 
and  more  especially  that  they  may  answer,  set  forth,  and 
particularly  describe  all  the  personal  property  belonging 
to  the  said  Asa  C.  Dunham  at  any  time  between  the  first 
day  of  January,  eighteen  hundred  and  thirty-  four,  and  the 
present  time,  to  wit,  the  third  day  of  April,  eighteen  hun- 
dred and  fifty,  and  the  true  value  thereof  ;  and  if  sold  and 
disposed  of,  to  whom  the  same  was  so  sold  and  disposed 
of,  and  when,  for  what  consideration,  and  whether  the 
consideration  money  has  been  paid  or  still  remains  due 
ancl  owing  to  the  said  Asa  C.  Dunham,  and  if  paid  to  the 
said  Asa  0.  Dunham,  whether  the  same  was  by  him  ap- 
plied to  the  payment  and  satisfaction  of  his  debts,  or  for 


NOVEMBER  TERM,  1855.  461 


Dunham  v.  Cox. 


what  purpose  it  was  used,  and  how  disposed  of  ;  and 
whether,  in  the  year  one  thousand  eight  hundred  and 
thirty-four,  or  some  other  time,  and  when,  a  part  of  said 
personal  property,  and  what  part,  was  not,  in  some  way 
or  manner,  placed  in-  the  hands  of  the  said  Azariah  W. 
Dunham  and  Nehemiah  Dunham,  or  one  of  them,  in  trust 
or  in  some  other  way,  for  the  use  and  benefit  of  the  said 
Asa,  and  whether  he  has  not  since  that  time  enjoyed  and 
received  the  use,  benefit,  and  advantage  of  the  same. 
And  that  they  may  answer,  set  forth,  and  discover  the 
real  estate  belonging  to  the  said  Asa  C.  Dunham,  and  by 
him  conveyed  to  the  said  Azariah  "W.  Dunham  and  Ne- 
hemiah Dunham,  as.  hereinbefore  mentioned,  and  what 
disposition  has  been  made  of  the  same,  and  every  part 
thereof,  and  when  such  disposition  was  made,  fully  and 
particularly,  and  in  whose  possession  the  said  real  estate 
has  been  since  the  first  day  of  September,  eighteen  hun- 
dred and  thirty-four,  and  the  amount  and  value  of  the 
same';  and  whether  the  said  Asa  C.  Dunham  did  make 
any  conveyance  or  conveyances  of  the  said  real  estate  to 
the  said  Azariah  "W.  Dunham  and  Nehemiah  Dunham,  or 
either  of  them,  and  what  was  the  true  and  actual  conside- 
ration paid,  to  whom,  when,  and  in  what  manner  ;  and 
whether  any  part  still  remains  unpaid,  how  much,  to 
whom,  and  how,  whether  by  bill,  bond,  note,  or  other- 
wise, and  when  the  same  is  or  will  be  due  and  payable. 
And  that  the  said  Asa,  Azariah  "W.,  and  Nehemiah  may 
set  out  and  annex  to  their  answer  a  copy  of  every  deed, 
writing,  lease,  contract,  bargain  or  agreement  incident  to 
the  sale,  use,  occupation,  and  possession  of  the  said  real 
estate  between  them,  and  who  has  enjoyed,  used,  and 
occupied  and  received  the  rents  and  profits  of  the  said 
real  estate  since  the  sixteenth  day  of  September,  eighteen 
hundred  and  thirty-four,  and  may  also  set  forth  for  what 
purpose  and  object,  at  whose  instance  and  advice,  the  said 
sales  of  the  real  estate  were  made  ;  that  the  said  Asa 
may  set  out  the  several  offers  he  had  for  the  said  real 

2Q* 


162      COURT  OF  ERRORS  AND  APPEALS. 

Dunham  v.  Cox. 

estate,  when  and  from  whom  ;  and  may  set  out  and  dis- 
cover the  reasons,  fully  and  particularly,  why  he  sold  and 
conveyed  the  said  real  and  personal  estate  to  the  said  Aza- 
riah  W.  Dunham  and  Nehemiah  Dunham,  and  to  each  of 
them,  his  brothers  ;  when  the  said*  bargains  were  first 
begun,  and  when  finally  concluded  between  them,  the 
said  Asa  and  Azariah  and  Nehemiah,  and  who  was  pre- 
sent at  such  bargain  and  sale ;  and  whether  the  said  Asa 
has  not,  since  the  year  one  thousand  eight  hundred  and 
thirty-four,  rented  out  said  real  estate,  or  the  greater  part 
thereof,  and  what  part,  to  whom,  and  on  what  terms  ;  and 
whether  he  has  not  had  an  equal  or  some  other  portion, 
and  what  portion,  of  the  said  rents  and  profits.  And  that 
the  said  Azariah  "W.  Dunham  and  Nehemiah  Dunham 
may  set  forth  and  answer  whether  they  have  reconveyed 
the  said  real  estate  or  any  part  thereof,  to  the  said  Asa 
C.  Dunham,  or  to  any  other  person  for  him  or  for  his  use 
and  benefit,  and  when  the  same  was  done,  for  what  con- 
sideration, when  and  how  paid  or  secured,  or  whether 
they,  the  said  Azariah  W.  Dunham  and  Nehemiah  Dun- 
ham, still  hold  and  claim  the  same  as  their  own  in  fee 
simple  ;  and  whether  the  said  real  estate  has  been  encum- 
bered by  judgment,  mortgage  or  otherwise,  and,  if  so, 
when,  to  whom,  and  for  what  amount  the  same  has  been 
encumbered,  and  whether  the  said  John  W.  Bray  and 
wife  and  John  B.  Taylor  and  wife  did  not  make  the  con- 
veyance (above  set  forth  and  described)  to  the  said  Asa 
C.  Dunham  at  the  time  or  some  other  time,  and  when, 
and  for  the  purpose  of  enabling  him  to  pay  your  orator 
and  others,  as  herein  before  mentioned,  or  for  some  other 
purpose  and  what ;  and  whether  the  said  Asa  C.  Dunham 
has,  in  pursuance  thereof,  paid  any  of  the  said  creditors, 
and,  if  so,  state  their  names,  amounts  paid,  and  when 
paid  ;  or  whether  the  said  Nehemiah  and  Azariah  "W.  still 
iold  the  said  lands  and  premises  so  conveyed  by  the  said 
J  ohn  "W":  Bray  and  John  B.  Taylor  in  trust  for  the  said 
•wsa,  or  for  your  orator,  or  for  whom  they  still  hold  the 


J 


NOVEMBER  TERM,  1S55.  463 


Dunham  v.  Cox. 


same.  And  that  the  said  Asa  C.  Dunham,  Azariah  W. 
Dunham,  and  Nehemiah  Dunham  may  set  out  in  full 
every  agreement,  bargain,  instrument,  sale,  or  other  trans- 
action relating  to  the  said  real  and  personal  estate,  whether 
between  the  said  Asa  C.  Dunham,  Azariah  W.  Dunham, 
and  Nehemiah  Dunham,  or  between  either  or  all  three  of 
them,  or  some  other  person  or  persons  at  present  unknown 
to  your  orator,  clearly,  explicitly,  and  directly,  as  if  the 
same  was  herein  set>  forth,  and  they  interrogated  there- 
unto ;  and  that  the  said  defendants,  Asa  C.  Dunham,  Aza- 
riah W.  Dunham,  and  Nehemiah  Dunham,  or  some  of 
them,  may  be  decreed  to  pay  to  your  orator  the  amount 
of  his  said  judgment,  interest,  and  costs,  and  that  the 
said  fraudulent  conveyances  and  sales  be  set  aside  and 
declared  void,  and  the  said  real  and  personal  property  be 
sold,  and  the  proceeds,  or  so  much  thereof  as  may  be  ne- 
cessary, be  appropriated  to  the  payment  of  your  orator's 
said  claim.  That  the  said  defendants  account  for  the 
rents,  issues,  and  profits  of  the  said  real  estate  and  for  the 
proceeds  of  the  sales  of  said  personal  estate  by  them,  or 
any  of  them,  heretofore  made,  or  that  may  hereafter  be 
made ;  and  that  your  orator  may  have  such  further  and 
other  relief  as  the  nature  of  his  case  may  require  and  as  to 
your  honor  shall  seem  meet. 

May  it  please  your  honor,  the  premises  considered,  to 
grant  to  your  orator  the  state's  writ  of  subpoana,  issuing 
out  of  and  under  the  seal  of  this  honorable  court,  to  be 
directed  to  the  said  Asa  C.  Dunham,  Azariah  "W.  Dun- 
ham, and  Nehemiah  Dunham,  therein  and  thereby  com- 
manding them,  and  each  of  them,  on  a  certain  day  nid 
under  a  certain  penalty,  therein  to  be  specified,  to  be  and 
appear  before  your  honor,  in  this  honorable  court,  then 
and  there  to  answer  all  and  singular  the  premises  con- 
tained in  this  your  orator's  bill  of  complaint,  and  to  stand 
to  and  abide  such  order  and  decree  in  the  premises  as  shall 
seem  meet  and  agreeable  to  equity  and  good  conscience. 
And  your  orator  will  ever  pray,  <fec. 


464      COURT  OF  ERRORS  AND  APPEALS. 

Dunham  v.  Cox. 

To  this  bill  a  general  demurrer  was  put  in  by  all  the  de- 
fendants. 

After  argument,  the  demurrer  was  overruled  by  the 
Chancellor,  by  order  made  on  the  3d  of  February,  1852, 
and  the  defendants  were  required  to  answer  the  bill  in  forty 
days  from  date  of  said  order. 

The  following  petition  of  appeal  was  filed  February 
26th,  1852,  by  the  appellants,  and  copy  duly  served  upon 
the  appellee  : 

"  The  humble  petition  of  Asa  C.  Dunham,  Nehemiah 
Dunham,  and  Azariah  "W.  Dunham,  the  appellants  in  the 
above  stated  cause,  respectfully  shows,  that  your  petitioners 
find  themselves  aggrieved  by  an  order  made  in  the  Court 
of  Chancery,  by  his  Honor  Oliver  S.  Halsted,  late  Chan- 
cellor of  the  state  of  New  Jersey,  bearing  date  the  third 
day  of  February,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  fifty-two,  wherein  your  petitioners  were 
defendants,  and  the  said  James  B.  Cox  was  complainant,  in 
this  respect,  to  wit,  that  the  said  order  overrules  the  de- 
murrer which  had  been  filed  by  your  petitioners  in  the  said 
cause  in  the  said  Court  of  Chancery  to  the  bill  of  complaint 
of  the  said  complainant,  and  requires  your  petitioners  to 
file  their  answer  to  the  said  bill  of  complaint  in  forty  days 
from  the  date  of  said  order. 

And  your  petitioners  humbly  appeal  from  the  said  order 
of  the  Chancellor,  made  as  aforesaid,  upon  the  ground  that 
the  same  is  erroneous,  for  that  the  said  demurrer  was  well 
taken,  and  should  have  been  sustained,  and  that  your  peti- 
tioners are  not  bound  to  answer  the  said  bill  of  complaint 
of  the  said  complainant. 

Your  petitioners  therefore  pray  that  the  said  order  of 
the  said  Chancellor,  overruling  the  said  demurrer  and  re- 
quiring your  petitioners  to  answer  the  said  bill  of  com- 
plaint, may  be  reversed,  set  aside,  and  for  nothing  holden, 
and  that  your  petitioners  may  have  such  relief  in  the  premi- 
ses as  to  this  honorable  court  shall  seem  meet." 

The  common  answer  was  filed  by  the  respondents. 


'NOVEMBER  TERM,  1855.  465 


Dunham  v.  Cox. 


The  Chancellor  furnished  the  court  with  the  following 
opinion,  as  containing  the  reasons  for  his  decree  : 

HALSTED,  C.  The  bill  shows  sufficiently  that  the  personal 
property  levied  on  is  claimed  by  others,  under  transfers 
from  Asa  C.  Dunham,  and  that  the  lands  levied  on  are 
claimed  'by  others,  under  a  deed  from  Asa  C.  Dunham ; 
and  the  transfers  and  deed  are  sufficiently  charged  to  be 
fraudulent.  In  such  cases,  it  is  within  the  province  of 
this  court  to  remove  out  of  the  way  of  the  judgment  cre- 
ditor the  hinderance  or  impediment  so  interposed,  on  the 
ground,  that  by  a  sale  while  such  impediment  exists,  the 
creditor  would  not  realize  the  value  of  the  property.  And 
the  judgment  creditor  is  not  obliged,  before  coming  into 
this  court,  to  go  to  a  trial  at  law,  of  the  right  of  property 
in  the  personality  levied  on,  with  the  view  of  having  the 
transfer  of  it  declared  void,  so  that  it  may  be  sold  before 
the  lands.  Such  transfer  is  good  against  the  debtor,  and 
the  creditor  may  let  it  stand  as  good,  if  he  pleases,  and 
attack  the  conveyance  of  the  land. 

If  any  of  the  personal  property  levied  on  under  the  second 
fi.  fa.,  is  not  included  in  the  transfer,  such  part  should 
be  sold  first.  The  bill  is  not,  perhaps,  as  clear  as  to  this 
as  it  might  have  been.  An  answer  may  show  how  this  is. 
Demurrer  overruled. 

The  appeal  was  argued  by 

_4.  Wurts,  for  appellant. 

Thomas  A.  Hartwdl^  for  respondent. 

The  opinion  of  the  Court  of  Appeals  was  delivered,  at 
November  term,  1855,  by 

WILLIAMSON,  C.  This  is  an  appeal  from  a  decree  over- 
ruling a  demurrer  filed  to  the  bill.  The  question  is  whether, 


4:66   COURT  OF  EEROES  AND  APPEALS. 

Dunham  v.  Cox. 

admitting  all  the  facts  stated  by  the  bill  to  be  true,  the  bill 
can  be  sustained.  It  is  a  bill  filed  by  a  judgment  and  exe- 
cution creditor,  for  the  purpose  of  setting  aside  certain  con- 
veyances of  real  and  personal  property  made  by  the  debtor, 
as  is  alleged,  to  defeat  his  creditors. 

That  a  judgment  and  execution  creditor  may  maintain  a 
bill  in  a  court  of  equity  to  remove  out  of  the  way  fraudu- 
lent encumbrances  placed  by  a  debtor  upon  his  property,  in 
order  that  the  property  may  be  appropriated  free  from  such 
fraudulent  encumbrances  to  the  satisfaction  of  the  creditor's 
judgment,  is  so  well  established,  that  it  is  needless  to  refer 
to  any  of  the  numerous  authorities  to  sustain  the  position. 
As  there  appears  some  doubt  as  to  the  extent  to  which  such 
creditor  must  proceed  at  law  before  he  can  invoke  the  aid 
of  a  court  of  equity,  it  may  be  well  for  this  court  to  express 
an  opinion  upon  this  point. 

When  a  creditor  has  by  a  judgment  established  his  debt, 
by  the  statute  he  acquires  a  lien  upon  all  the  real  estate  of 
his  debtor  to  satisfy  his  debt.  If  the  debtor  has  fraudu- 
lently conveyed  away  or  encumbered  his  real  estate,  so  as  to 
interpose  an  obstacle  which  embarrasses  the  debtor  in  appro- 
priating it  by  legal  process  in  satisfaction  of  his  debt,  then 
the  creditor  may  file  his  bill  to  remove  out  of  the  way  such 
fraudulent  conveyance  or  encumbrance.  It  is  not  necessary 
for  him  to  take  out  execution  upon  his  judgment.  The 
judgment  constitutes  a  lien  upon  the  land,  and  there  is  no 
necessity  of  compelling  the  creditor,  as  a  mere  matter  of 
form,  to  incur  the  further  expense  at  law  of  issuing  an  exe- 
cution. It  is,  perhaps,  most  advisable  for  him  to  do  so.  It 
may  avoid  a  contest  with  the  subsequent  execution  creditor ; 
for  although  the  judgment  is  a  lien  upon  the  land,  an  execu- 
tion upon  a  subsequent  judgment  acquires,  upon  its  delivery 
to  the  officer  by  virtue  of  the  statute,  a  prior  lien  upon  the 
property.  As  between  the  debtor  and  creditor,  however, 
the  issuing  of  an  execution  is  not  necessary  in  order  that 
the  creditor  may  acquire  a  right  to  exhibit  his  bill  for 
relief. 


NOVEMBER  TEEM,  1855.  467 


Dunham  v.  Cox. 


But  if  it  is  the  personal  property  of  the  debtor  which 
the  creditor  wishes  to  reach  and  appropriate  to  the  pay- 
ment of  his  judgment,  he  must  take  out  an  execution 
upon  his  judgment  before  he  can  exhibit  his  bill ;  for  it 
is  by  the  execution,  and  not  by  his  judgment^  that  he  ac- 
quires a  lien  upon  the  personal  property. 

In  the  case  before  us,  the  bill  complains  of  a  fraudulent 
transfer  by  the  debtor,  of  both  hie  real  and  personal  estate. 
The  complainant  has  obtained  judgment,  and  issued  execu- 
tion. 

The  defect  of  the  bill  is,  that  it  does  not  show  that  the 
aid  of  a  court  of  equity  is  needed  to  remove  any  hinder- 
ance  or  impediment  interposed  by  the  debtor,  in  order  that 
the  judgment  and  execution  at  law  may  be  satisfied. 

It  is  not  enough  for  the  bill  to  show  that  the  debtor  has 
made  a  fraudulent  disposition  of  any  particular  portion  of 
his  property  to  entitle  the  creditor  to  the  aid  of  a  court 
of  equity.  He  must  show  that  such  disposition  embar- 
rasses him  in  obtaining  satisfaction  of  his  debt ;  for  if  the 
debtor  has  other  property  subject  to  the  judgment  and 
execution  sufficient  to  satisfy  the  debt,  there  is  no  neces- 
sity for  the  creditor  to  resort  to  equity.  If  his  debt  can 
be  satisfied  out  of  property  upon  which  his  judgment  is 
a  lien,  it  is  only  inviting  useless  litigation  for  him  to  ques- 
tion conveyances  made  by  the  debtor,  which,  however 
they  may  have  been  intended,  do  not  operate  as  a  fraud 
upon  him.  A  court  of  equity  interposes  because  its  aid  is 
necessary  to  assist  the  creditor  in  obtaining  his  legal  rights. 
If  there  is  property  which  the  law  places  within  his  roach 
free  from  embarrassment  to  satisfy  his  debt,  the  aid  of  a 
court  of  equity  is  not  required. 

No  particular  form  of  the  bill  or  formal  specific  allega- 
tions are  necessary  to  constitute  the  bill  a  good  one.  But 
facts  must  l>e  stated  from  which,  at  least,  the  inference  may 
be  drawn,  tliat  the  aid  of  a  court  of  equity  is  required  to 
give  the  judgment  its  legal  and  full  effect. 

But  this  bill,  so  far  from  stating  facts  to  justify  such  an 


468      COURT  OF  ERRORS  AND  APPEALS. 

Dunham  v.  Cox. 

inference,  the  contrary  legitimately  flows  from  such  facts 
as  are  stated.  The  bill,  it  is  true,  alleges  that  the  defend- 
ant has  conveyed  away  certain  real  and  personal  property 
for  the  purpose  of  defrauding  the  complainant.  It  does 
not  specify  the  personal  property  any  further  "  than  as 
sundry  goods  and  chattels."  It  describes  particularly  the 
real  estate  so  alleged  to  have  been  disposed  of.  If  the  bill 
had  stopped  here,  even  without  alleging  that  the  defend- 
ants had  no  other  property  out  of  which  the  judgment 
might  be  satisfied,  the  complainant  might  be  entitled  to 
the  aid  of  the  court  from  the  allegation,  that  this  property 
had  been  disposed  of,  by  the  defendant  for  the  purpose  of 
defrauding  his  creditor. 

But  the  bill  further  shows  that,  by  an  execution  taken 
out  upon  the  judgment,  certain  other  personal  property, 
in  the  possession  of  the  defendant,  was  levied  upon  by 
the  sheriff.  It  is  true  the  value  of  the  property  is  not 
given ;  but  the  very  character  of  this  personal  estate  is 
such  as  shows  its  value  to  exceed  the  amount  due  upon 
the  judgment.  The  bill  does  not  pretend  that  this  pro- 
perty was  ever  disposed  of  by  the  defendant,  or  that  any 
legal  hinderance  or  impediment  has  been  placed  in  the  way 
of  the  sheriff's  appropriating  it  to  the  payment  of  the  exe- 
cution in  his  hands. 

The  bill  does  not  stop  here.  It  shows  that  the  sheriff, 
by  his  execution,  levied  upon  nine  distinct  tracts  of  land 
as  the  property  of  the  defendant.  It  does  not  show  that 
there  is  any  encumbrance  upon  this  land,  nor  give  any 
reason  why  the  sheriff  has  not  sold  it  to  satisfy  the  judg- 
ment and  execution. 

Suppose,  then,  the  allegations  of  the  bill  to  be  true 
with  regard  to  the  other  personal  and  real  estate  of  the 
judgment  debtor,  that  he  has  fraudulently  conveyed  it 
for  the  purpose  of  defeating  this  judgment,  if  he  is  still 
in  possession  and  is  the  owner  of  property  enough  to  sat- 
isfy the  judgment,  and  which  has  been  levied  upon,  and 
is  at  the  legal  disposal  of  the  sheriff  for  the  purpose,  the 


NOVEMBEK  TEEM,  1855.  469 


Sheridan  v.  Medara. 


assistance  of  a  court  of  equity  is  not  necessary  to  aid  the 
complainant  in  *his  legal  remedy  to  obtain  satisfaction  of 
his  judgment.  This  is  the  only  ground  upon  which  the 
jurisdiction  of  a  court  of  equity  can  be  invoked ;  and  as 
the  complainant  does  not  show  that  he  stands  upon  this 
ground,  he  cannot  maintain  his  bill.  The  bill  is  radically 
defective.  Admitting  all  its  facts  to  be  true,  it  cannot  be 
maintained.  The  demurrer  is  therefore  well  taken,  and  the 
decree  of  the  Chancellor  overruling  the  demurrer  must  be 
reversed  with  costs. 

Decision  reversed  by  the  following  vote : 
For  affirmance — None. 

For  reversal — CHIEF  JUSTICE,  Judges  ARROWSMITH,  COR- 
NELISON,  HAINES,  HUYLER,  POTTS,  RISLEY,  VALENTINE,  VRB- 
DENBUKGH,  WILLIAMSON,  WILLS. 

CITED  in  Mittnight  v.  Smith,  2  C.  E.  Gr.  262;  Bigelow  Blue  Stone  Co.  v. 
Magee,  12  C.  E.  Gr.  393. 


Between  ABRAHAM  SHERIDAN  et  al.,  appellants,  and  JOSEPH 
T.  MEDARA  et  al.,  respondents. 

A  participation  in  tho  profits  of  business  constitutes  a  partnership  as  to  third 
persons:  so  where  the  evidence  in  the  cause  showed  to  a  reasonable  degree 
of  certainty  that  one  was  to  share  in  tho  profits  of  a  business  carried  on  in 
the  name  of  another,  it  established  the  partnership. 

Although  the  business  be  carried  on  in  the  name  of  one  alone,  and  neither 
suppose  that  they  are  partners,  although  they  did  not  intend  to  become 
partners,  and,  as  between  themselves,  were  not  partners,  yet  the  law  may 
hold  them  liable  as  jwrtners  as  to  third  persons  upon  an  agreement  to  share 
in  the  profits. 

Where  money  was  loaned  at  six  per  cent.,  but  in  case  the  debtor's  business 
succeeded,  he  was  to  pay  twenty-five  per  cent.,  such  contract,  though 
usurious  as  to  tho  borrower,  as  to  third  persons  made  tho  debtor  and 
creditor  partners. 

The  objection  to  a  witness  on  the  ground  of  incompcteney  on  account  of  his 
being  a  partner,  not  made  until  after  the  direct  examination,  is  not  well 
taken  in  point  of  time.  A  party  cannot  speculate  by  waiting  to  discover 

VOL.  n.  2  K 


470      COUKT  OF  ERRORS  AND  APPEALS. 

Sheridan  v.  Medara. 

whether  the  testimony  of  a  witness  fs  favorable  or  unfavorable,  and  then 
interpose  his  objection  at  pleasure.    WILLIAMSON,  C. 


This  cause  was  argued  in  the  Court  of  Chancery,  in  the 
term  of  February,  1855,  by  Mercer  Beasley,  solicitor  and  of 
counsel  with  complainants,  and  Isaac  W.  Lanning,  solicitor 
and  of  counsel  with  defendants. 

The  bill  alleges,  that  one  John  P.  Combs,  of  the  city  of 
Trenton,  in  the  state  of  New  Jersey,  being  indebted  to 
complainants  in  the  sum  of  one  hundred  and  seventy-six 
dollars  and  thirty-three  cents,  for  certain  goods  and  mer- 
chandise sold  and  delivered  by  them  to  him,  they,  on  the 
twenty-fourth  day  of  September,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  fifty-three,  obtained  a 
judgment  against  the  said  John  P.  Combs  for  the  said 
amount,  together  with  the  sum  of  four  dollars,  costs  of 
suit,  in  an  action  of  debt  in  the  Mercer  County  Circuit 
Court,  and  thereupon,  on  the  same  day,  caused  an  execu- 
tion to  be  issued  to  the  sheriff  of  the  county  of  Mercer 
aforesaid,  commanding  him  to  levy  and  make  the  said 
debt  and  costs  out  of  the  goods  and  chattels  of  the  said 
John  P.  Combs  in  his  county,  and  also  to  do  certain  other 
things  in  the  said  writ  set  forth  ;  that  on  the  twenty-fourth 
day  of  September  aforesaid,  and  for  a  considerable  period 
before,  the  said  John  P.  Combs  was  in  the  possession  of 
a  certain  stock  of  ready-made  clothing,  of  about  the  value 
of  twelve  hundred  dollars,  and  which  said  stock  was  de- 
posited in  a  store  in  Greene  street,  in  the  city  of  Trenton, 
in  which  the  said  Combs  had  been  carrying  on  business 
as  a  retailer  of  articles  of  ready-made  clothing ;  that  the 
sheriff  of  the  said  county  of  Mercer,  to  whom  complain- 
ants' execution  was  delivered  as  aforesaid,  levied  the  same 
on  the  said  stock  of  clothing,  on  or  about  the  date  of  the 
said  judgment,  and  made  an  inventory  of  the  said  stock, 
and  attached  it  to  the  said  execution,  as  will  more  fully 
appear  by  the  said  writ  of  execution  and  the  said  inven- 
tory, &c.,  '•-hat  they  have  discovered  that  the  said  stock  of 
goods  was,  at  the  time  of  the  said  levy  being  made,  as 


NOVEMBER  TEEM,  1855.  471 


Sheridan  v.  Medara. 


above  stated  in  their  behalf  by  the  said  sheriff,  subject  to 
a  certain  execution  and  levy,  and  which  said  last  men- 
tioned execution  had  been  issued  out  of  the  Supreme  Court 
of  the  state  of  New  Jersey,  and  was  founded  on  a  judg- 
ment entered  on  the  twenty-first  day  of  September,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  fifty- 
three,  in  favor  of  one  Abraham  Sheridan  against  the  said 
John  P.  Combs  for  the  sum  of  seventeen  hundred  and 
two  dollars  and  fifty-four  cents  debt,  and  the  sum  of  four 
dollars  costs  of  suit,  the  said  judgment  being  entered  on 
a  certain  ~bond,  bearing  date  the  day  and  year  aforesaid, 
in  the  penalty  of  the  said  sum  of  debt  aforesaid,  and  con- 
ditional for  the  payment,  on  demand,  of  the  sum  of  eight 
hundred  and  fifty-one  dollars  and  seventy-seven  cents, 
given  by  the  said  John  P.  Combs  to  the  said  Abraham 
Sheridan  ;  that  the  same  goods  and  chattels  are  levied  on 
by  virtue  of  the  execution  last  aforesaid  as  are  levied  on 
by  virtue  of  the  execution  issued  on  the  judgment  of  your 
orators,  and  if  the  same  be  a  valid  lien,  it  is  in  all  respects 
prior  and  superior  to  that  of  your  orators  ;  that  the  said 
sheriff,  by  force  of  and  in  obedience  to  the  command  of 
the  said  execution  issued  on  the  judgment  in  favor  of  the 
said  Abraham  Sheridan,  has  advertised  according  to  law 
the  said  stock  of  goods  for  sale  on  the  twenty-ninth  day 
of  September,  instant,  and  complainants  believe  it  is  his 
intention  to  sell  on  that  day  ;  that  if  the  said  sale  takes 
place,  and  the  proceeds  thereof  shall  be  applied,  after  re- 
serving to  the  said  John  P.  Combs,  who  is  a  debtor,  having 
a  family  resident  in  this  state,  such  portion  of  the  said 
stock  as  the  laws  of  this  state  exempts  to  the  payment  of 
the  judgment  of  the  said  Sheridan,  there  will  be  left  little 
or  nothing  to  be  appropriated  to  the  satisfaction  of  the 
said  judgment  debt  ;  that  the  said  John  P.  Combs  has  no 
other  property,  cither  real  or  personal,  out  of  which  the 
said  sums  of  money  due  and  unpaid  on  the  judgment  of 
your  orators  can  be  levied  and  made,  either  in  whole  or 
in  part,  and  they  further  believe  that  the  said  John  P. 


472   COUET  OF  ERRORS  AND  APPEALS. 

Sheridan  v.  Medara. 

Combs  is  altogether  insolvent  ;  that  from  the  information 
acquired  by  them,  they  have  reason  to  believe,  and  do 
believe,  and  therefore  charge,  that  the  said  judgment  above 
referred  to,  entered  by  the  said  Abraham  Sheridan  in  the 
said  Supreme  Court,  is  altogether  fraudulent  and  void,  as 
against  them  and  the  other  creditors  of  the  said  John  P. 
Combs,  and  they  show,  to  justify  this  belief,  and  charge 

the  following  facts  :  that  on  or  about  the of , 

in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
fifty ,  the  said  Abraham  Sheridan  entered  into  an  ar- 
rangement with  the  said  John  P.  Combs  to  this  effect : 
that  they  should  enter  into  the  business  of  retailing  ready- 
made  clothing  in  the  city  of  Trenton,  and  that  he,  the 
said  Sheridan  would  find  and  put  in  the  stock,  or  the 
greater  part  thereof,  but  should  give  no  personal  attention 
to  the  said  business,  neither  should  his  name  appear  as  a 
party  in  interest  therein  ;  and  in  lieu  of  said  advance  on 
the  part  of  the  said  Sheridan,  he,  the  said  John  P.  Combs, 
should  give  his  whole  time  and  personal  attendance  in 
selling  out  and  retailing  the  said  clothing,  the  profits  to 
be  divided  in  certain  proportions  (but  in  what  precise 
ratio  they  have  not  been  able  to  discover)  between  the 
two  ;  that  upon  this  agreement,  or  some  other  agreement 
substantially  similar,  the  said  Abraham  Sheridan  and  the 
said  John  P.  Combs  entered  on  the  said  business,  and  car- 
ried the  same  on  in  conformity  to  said  agreement,  or  with 
slight  variations  therefrom,  until  the  entering  up  of  the 
said  judgment  in  favor  of  the  said  Sheridan  against  the  said 
Combs  ;  that  from  the  time  of  entering  upon  the  said  busi- 
ness to  the  cessation  thereof,  as  above  stated,  the  said  Abra- 
ham Sheridan  received  his  share  of  the  profits  of  the  said 
joint  business,  in  accordance  with  his  stipulation  to  that  ef- 
fect ;  that  on  the  said  twenty-first  day  of  September,  instant, 
or  about  that  time,  the  said  Abraham  Sheridan,  under  the 
belief  that  his  connection  with  the  said  business  was  un- 
known, persuaded  and  procured  the  said  John  P.  Combs 
to  execute  to  him  the  said  bond,  in  the  penalty  of  seven- 


NOYEMBEK  TEEM,  1855.  473 


Sheridan  v.  Medara. 


teen  hundred  and  three  dollars  and  fifty-four  cents,  con- 
ditioned for  the  payment  of  the  sum  of  eight  hundred 
and  fifty-one  dollars  and  seventy-seven  cents  on  demand, 
together  with  a  warrant  of  attorney  to  enter  up  judgment 
thereon,  but  the  only  consideration  for  said  bond  was,  as 
complainants  have  been  informed  and  believe,  the  sum  of 
money  which  the  said  stock,  or  some  portion  of  it,  origi- 
nally cost,  and  which  was  purchased  as  aforesaid  by  the 
said  Sheridan,  as  his  venture  in  the  said  business,  and 
that  even  this  sum,  for  which  the  judgment  bond  was 
given,  was  more  than  the  said  Sheridan  had  put  into  said 
concern ;  that  besides  his  share  of  the  profits  of  the  said 
business,  the  said  Abraham  Sheridan  has  now  in  his  hands 
the  sum  of  three  hundred  and  thirty-five  dollars,  which 
is  part  of  the  earnings  of  the  said  partnership,  and  which 
the  said  Abraham  Sheridan  received  from  his  said  part- 
ner, John  P.  Combs,  for  the  purpose  of  paying  off  some 
of  the  debts  due  from  the  said  partnership,  but  which  he 
now  refuses  to  appropriate  in  that  way,  but  holds  the  same 
as  his  own  money  ;  that  the  said  Abraham  Sheridan,  with 
great  care  and  contrivance,  kept  secret  his  connection 
with  the  said  business,  holding  out  the  idea  that  the  said 
John  P.  Combs  was  solely  interested  and  engaged  therein, 
and  that  although  he  knew  the  said  Combs  was  altogether 
irresponsible  in  a  pecuniary  point  of  view,  he  always  held 
out  to  the  public,  and  particularly  to  the  merchants  in  Phil- 
adelphia, that  he,  said  Combs,  had  property,  and  could  be 
safely  credited. 

The  bill  charges  that  the  said  judgment  entered  up  on 
the  said  bond  and  warrant  of  attorney  by  the  said  Abra- 
ham Sheridan  against  the  said  John  P.  Comb.s  is  void,  as 
against  the  judgment  lien  of  your  orators,  and  should  be 
Bet  aside,  or  at  all  events  postponed  to  said  lien. 

The  prayer  of  the  bill  is  as  follows  :  and  that  the  said 
judgment  of  said  Sheridan  against  said  John  P.  Combs 
may  be  set  aside  or  postponed  to  that  of  your  orators,  or 
that  your  orators'  judgment  may  be  paid  out  of  the  said 

2u* 


474      COURT  OF  ERRORS  AND  APPEALS. 

Sheridan  v.  Medara. 

money  in  the  bands  of  the  said  Abraham  Sheridan,  and 
that  a  writ  of  injunction  may  be  issued  out  of  this  honor- 
able court,  directed  to  said  sheriff  of  the  said  county  of 
Mercer,  the  said  William  Boswell,  enjoining  him  from 
paying  over  the  proceeds  of  the  sale  of  the  said  stock,  or 
any  part  thereof,  to  the  said  Abraham  Sheridan,  or  to  any 
one  in  his  behalf,  and  commanding  him  to  retain  the  same 
in  his  hands  until  the  further  order  of  this  court  in  the 
premises,  and  that  the  moneys  due  on  the  said  judgment 
of  your  orators  may  be  ordered  to  be  first  paid  out  of  the 
said  moneys,  and  for  further  relief. 

At  the  term  of  May,  1855,  a  decree  was  made  in  favor 
of  the  complainant.  From  this  decree  an  appeal  was 
taken.  The  Chancellor  furnished  the  court  with  the  fol- 
lowing opinion,  as  containing  the  reasons  for  his  decree. 

WILLIAMSON,  C.  The  question  is,  whether  Sheridan 
was  a  partner  of  John  P.  Combs  ?  If  he  was,  then  the 
judgment  confessed  by  Combs  to  Sheridan  was  fraudulent 
as  against  the  complainants,  who  are  subsequent  judg- 
ment creditors.  It  makes  no  difference  as  to  the  rights 
of  the  complainants  in  respect  to  the  judgment  of  Sheri- 
dan, that  the  complainants'  judgment  is  against  Combs 
alone.  They  are  not  concluded  by  this  fact  from  showing 
that  Sheridan  was  a  partner.  It  is  true  they  contracted 
their  debt  with  Combs,  and  obtained  judgment  against 
him  alone.  The  complainants  allege,  that  when  they  ob- 
tained their  judgment,  they  were  not  aware  of  the  fact  of 
Sheridan's  connection  in  business  with  Combs.  Sheridan 
now  denies  that  he  was  a  partner.  He  procured  Combs 
to  confess  a  judgment  to  him  for  advances  he  alleges  he 
had  advanced  in  the  business.  If  he  was  a  partner,  he 
has  no  right  to  appropriate  the  partnership  property  to 
satisfy  his  judgment  to  the  exclusion  of  other  creditors  : 
it  is  a  fraud  upon  them  to  permit  him  to  do  so. 

The  partnership  is  proved  by  Combs  and  by  H.  B. 
Hutchins.  If  they  are  competent  witnesses,  and  their 
testimony  entitled  to  credit,  then  Sheridan  was  a  partner, 


NOVEMBER  TERM,  1855.  475 


Sheridan  v.  Medara. 


and  his  judgment  must  be  postponed  to  that  of  the  com- 
plainants. 

Their  competency  is  objected  to.  I  think  they  are  both 
competent  witnesses.  The  objection  to  Combs  is  on  ac- 
count of  his  being  a  partner.  The  objection  was  not  well 
taken  in  point  of  time.  It  was  not  made  until  after  the 
direct  examination.  A  party  cannot  speculate  by  waiting 
to  discover  whether  the  testimony  of  a  witness  is  favorable 
or  unfavorable,  and  then  interposes  his  objection  at  pleasure. 
He  is  bound  to  make  his  objection  as  soon  as  he  is 
made  acquainted  with  the  position  of  the  witness.  In  this 
case  the  defendant  knew  the  position  of  the  witness,  as 
to  interest,  when  he  was  first  put  upon  the  stand.  The 
bill  was  filed  on  the  ground  that  Combs  and  Sheridan 
were  partners.  This  was  the  foundation  of  the  suit,  and 
yet  the  defendant  reserved  his  objection  until  the  com- 
plainants had  closed  with  the  witness.  It  was  then  too 
late  to  make  the  objection.  But  Combs  has  no  interest. 
Sheridan  has  a  judgment  against  Combs,  and  so  has  the 
complainants.  They  are  both  confessed  judgments.  Combs 
cannot  question  either  of  them.  Both  parties  are  his 
judgmeut  creditors,  and  the  only  question  involved  in  this 
controversy  is  as  to  the  priority  of  the  judgments.  It  can 
make  no  difference  to  Combs,  whatever  may  be  the  result 
of  this  suit.  One  of  the  judgments  will  be  reduced  by  the 
application  of  his  property,  and  it  cannot  affect  his  liability 
or  interest  in  any  way  as  to  which  of  the  two  judgments 
such  application  is  made.  Hutchins  testifies  that  he  was 
a  partner  also,  and  he  is  objected  to  on  that  account.  The 
objection  to  this  witness  was  also  made  too  late.  I  cannot, 
however,  see  how  he  is  interested  in  the  result  in  this  case. 
It  can  make  no  difference  to  him  which  judgment  takes  the 
property. 

Are  these  witnesses  credible?  Their  general  character 
is  not  impeached.  It  is  said  that  the  facts  they  state  are 
contradicted  by  other  credible  witnesses.  It  is  true  Combs 
is  contradicted  in  some  particulars.  It  is  proved  that  he 


4T6       COURT  OF  ERRORS  AND  APPEALS. 

Sheridan  v.  Medara. 

represented  himself  as  alone  interested  in  the  business, 
and  denied  that  Sheridan  was  a  partner ;  but  these  repre- 
sentations, are  consistent  with  his  whole  story.  He  says 
that  it  was  the  agreement  that  Sheridan  was  not  to  be 
known  as  a  partner,  and  that  the  representations  made  by 
him  were  made  at  the  particular  request  of  Sheridan.  He 
is  corroborated  by  Hutchins  and  by  many  circumstances 
in  the  case.  I  do  not  feel  justified  in  throwing  out  the 
testimony  of  these  witnesses.  Hutchins  is  not  contra- 
dicted on  any  material  matter.  Both  witnesses  state  facts 
establishing  beyond  a  doubt  that  Sheridan  was  a  partner. 
From  the  very  character  of  the  dealings  of  the  parties, 
they  alone  were  cognizant  of  those  facts.  It  is  not  one 
single  fact  to  which  they  testify,  but  to  particulars  of 
various  kinds  going  to  establish  the  point  in  controversy. 
These  men  are  well  known  in  the  community;  they  are 
men  of  business;  they  have  had  large  dealings  in  the 
community.  It  can  hardly  be  credited  that  they  could 
manufacture  the  story  they  have  told,  unless  they  are  men 
utterly  destitute  of  moral  principle,  and  yet  their  general 
character  for  truth  and  varacity  has  not  been  impeached. 
I  have  no  right  to  discredit  them ;  and,  as  I  said  before, 
relying  upon  their  evidence,  the  complainants  have  proved 
their  case  beyond  a  doubt. 

I  am  of  opinion  that  the  complainants  have  established 
the  case  made  by  their  bill,  and  that  their  judgment  is  en- 
titled to  priority,  the  complainants'  cost  of  this  suit  to  be 
first  paid  out  of  the  fund. 

The  appeal  was  argued  at  November  term,  1855,  by 
W.  Hoisted,  for  the  appellant. 
M.  Beasley,  for  respondents. 

The  opinion  of  the  court  was  delivered  at  the  same 
term,  by 


NOVEMBER  TERM,  1855.  477 


Sheridan  v.  Medara. 


GREEN,  C.  J.  The  only  point  relied  upon  by  the  appel- 
lant for  reversal  in  this  case  is,  that  the  partnership  alleged 
in  the  bill  to  exist  between  Combs,  the  defendant  in 
execution,  and  Sheridan,  the  appellant,  is  not  sufficiently 
proved. 

The  rule,  that  a  participation  in  the  profits  of  business 
constitutes  a  partnership  as  to  third  persons,  is  not  ques- 
tioned. The  only  inquiry  is,  does  the  evidence  in  the  cause 
show  to  a  reasonable  degree  of  certainty  that  Sheridan  was 
to  share  in  the  profits  of  the  business  carried  on  in  the 
name  of  John  P.  Combs.  If  it  does,  the  partnership  is 
established.  The  fact  is  expressly  sworn  to  by  two  wit- 
nesses, called  on  the  part  of  the  defendant.  The  competency 
of  these  witnesses  is  not  denied.  It  is  insisted,  however, 
that  their  credibility  is  impeached  by  facts  stated  by  them- 
selves and  proved  by  other  witnesses. 

The  fact  mainly  relied  on  as  impeaching  the  credibility 
of  Combs  is,  that  he  repeatedly  stated  during  the  continu- 
ance of  the  business,  that  he  was  carrying  it  on  alone,  and 
that  Sheridan  was  not  a  partner.  But  that  fact  is  perfectly 
consistent  with  the  integrity  and  veracity  of  the  witrtess. 
There  was  no  agreement  for  a  partnership  between  the 
parties.  The  contract  in  form  was  a  loan  of  money. 
Combs  was  a  borrower.  Sheridan  was  a  lender.  He  held 
a  judgment  bond  for  every  dollar  advanced  by  him.  The 
business  was  carried  on  in  the  name  of  Combs.  Probably 
neither  Combs  nor  Sheridan  supposed  they  were  partners. 
They  did  not  intend  to  become  partners  ;  as  between  them- 
selves, they  were  not  partners.  The  law,  indeed,  holds 
them  liable  as  partners  to  third  persons,  upon  an  agreement 
to  share  in  the  profits.  But  that  is  a  legal  consequence  uf 
the  contract,  of  which  both  partners  may  well  have  been, 
and  of  which  Combs  swears  that  he  was  entirely  ignorant. 
His  saying,  therefore,  that  Sheridan  was  not  his  partner, 
and  that  he  was  carrying  on  business  on  his  own  account, 
ought  not  to  be  regarded  as  any  impeachment  of  his  char 
acter  for  veracity. 


478   COUKT  OF  ERKOES  AXD  APPEALS. 

Sheridan  v.  Medara. 

It  is  said  again,  that  his  evidence  was  prompted  by 
malevolence.  He  may,  and  probably  did  testify  under  the 
influence  of  strong  feeling.  The  same  fact  may  be  true  of 
Hutchins,  the  witness  by  whom  he  is  principally  corrobor- 
ated. This  fact  requires  that  their  evidence  should  be  care- 
fully scrutinized,  but  will  not  warrant  its  rejection  as  in- 
credible. Their  evidence,  moreover,  is  corroborated  by 
facts  and  circumstances  stated  by  others.  The  weight  of 
the  evidence  is  decidedly  in  support  of  the  case  made  by 
the  bill.  The  fact  that  Sheridan  was  to  participate,  in  the 
profits  of  the  business,  and  consequently  his  liability  as  a 
partner  to  third  persons  is  sufficiently  established. 

But  if  the  evidence  on  the  part  of  the  complainant  be 
utterly  incredible,  the  case  proved  by  one  of  the  witnesses 
on  the  part  of  the  appellant  himself  establishes  his  liability 
as  a  partner,  and  the  right  of  the  complainant  to  a  decree 
against  him.  The  case,  as  proved  by  the  appellant,  is  that 
lie  loaned  the  money  to  Combs,  for  which  he  was  to  re- 
ceive twenty-five  per  cent,  in  case  Combs  succeeded  in 
business ;  in  other  words,  he  was  to  receive  nineteen  per 
cent,  per  annum  out  of  the  profits  of  the  business  over 
and  above  the  legal  rate  of  interest.  The  better  opinion 
is,  that  such  contract,  though  usurious  as  to  the  other 
party,  as  to  third  persons  made  Sheridan  a  partner  with 
the  borrower,  and  liable,  as  such,  for  the  debts  of  the 
firm.  2  W.  Bloc.  999,  Bloxom  v.  Peel ;  1  Parsons  on 
Con.  134. 

A  court  of  equity  would  surely  pever  penmt  Sheridan, 
himself  holding  a  judgment  for  his  loan,  the  validity  of 
which  is  unimpeached,  to  set  up  his  own  usury  in  •  avoid- 
ance of  his  liability  as  a  partner  to  the  ~bona  fide  creditors  of 
the  concern. 

There  is  no  such  material  or  essential  difference  be- 
tween the  allegations  and  proofs  as  to  prejudice  the  com- 
plainants' right  of  recovery.  The  material  averment  in 
the  bill  is,  that  the  appellant  is  liable  as  a  partner  of 
Combs,  by  reason  of  his  participation  in  the  profits  of  the 


NOVEMBER  TERM,  1855.  479 


Sheridan  v.  Medara. 


business.  The  precise  share  of  profits  received  by  Sheri- 
dan, or  the  time  of  receiving  of  it,  is  not  material. 

The  decree  of  the  Chancellor  should  be  affirmed  with 
costs. 

The  decision  was  affirmed  by  the  following  vote  : 

for  Affirmance — CHIEF  JUSTICE,  Judges  AKROWSMITH, 
IIUYLEE,  RlSLEY,  VREDENBUBGH,  CoBNELISON,  HAINE8, 
POTTS,  VALENTINE,  WILLS. 

For  reversal — None. 

CITED  tn  Hargrave  v.  Conroy,  i  C.  E.  Or,  283k 


COURT  OF  ERRORS  AND  APPEALS 

MARCH  TEEM,  1856. 


Between  JOHN  YARD,  jim.,  appellant,  and  THE  PACIFIC 
MUTUAL  INSURANCE  COMPANY  and  JOSEPH  C.  POTTS, 
president,  &c.,  respondents. 

Admitting  it  to  be  true  that  the  capital  stock  of  an  insurance  company  waa 
not  bonafide  paid  in,  and  that  the  company  commenced  the  business  of  in- 
surance in  violation  of  the  express  provision  of  the  charter,  yet  this  court 
ought  not  to  interfere  with  suits  brought  upon  bonds  in  a  court  of  law  for 
the  purpose  of  aiding  the  complainants  to  avoid  their  payment,  where  it 
appears  that  the  bonds  were  given  in  payment  for  the  stock  of  the  com- 
pany, that  the  complainant  received  his  certificate  of  stock,  and  that  upon 
these  bonds,  as  a  portion  of  the  capital,  the  company  embarked  in  business. 

The  question  is  a  legal  one,  and  the  complainant  may  avail  himself  of  it,  as 
far  as  it  is  a  defence  in  the  suit  at  law. 

Upon  the  ground  that  it  is  against  public  policy  to  permit  the  company  to 
enforce  a  bond  given  in  violation  of  law,  the  complainant  may  have  the 
right  to  defend  himself  at  law  and  in  equity,  and  yet  not  be  entitled,  as  a 
complainant  in  this  court,  to  be  relieved  against  their  payment. 

A  complainant  who  invokes  the  equitable  powers  of  this  court  will  be  com- 
pelled to  do  equity  before  he  obtains  its  aid. 

The  charter  declared  that  the  capital  stock  should  be  actually  paid  in  before  it 
shall  be  lawful  for  the  said  company  to  commence  the  business  of  insur- 
ance, and  the  company  is  authorized  to  invest  its  capital  in  public  stocks, 
bonds,  and  mortgages,  and  such  other  securities  as  the  directors  may  ap- 
prove. It  appeared  that  the  whole  capital  was  securely  invested ;  that  the 
subscription  to  the  stock  was  made  in  good  faith ;  that  the  company  went 
on  and  insured  upon  the  faith  of  this  capital.  It  was  held  that  individ- 
uals who  gave  their  obligations  to  constitute  this  capital  could  not  repudi- 
ate them  on  the  ground  that  the  stock  had  not  been  subscribed  and  paid 
in.  The  securities  are  not  void  because,  instead  of  going  through  the  for- 
mality of  receiving  the  money,  and  then  paying  it  back  and  taking  securi- 
ties, the  directors  took  the  securities  without  this  ceremony. 

One  stockholder  in  a  company,  because  he  has  an  unsettled  account  with 
them,  or  s^.~  other  matter  of  dispute,  has  no  right  to  bring  a  company 
into  this  coort  to  settle  all  their  accounts  as  a  company. 


MAECH  TEEM,  1856.  481 


Yard  v.  Insurance  Co. 


When  the  complainant  does  equity,  and  pays  up  the  installments  already  as- 
sessed and  the  costs  of  the  suit  at  law,  the  court  will  protect  him  against 
any  assessment  not  levied  upon  other  stockholders. 


The  case  sufficiently  appears  in  the  Chancellor's  opin- 
ion. 

The  cause  was  argued  in  the  Court  of  Chancery,  in  the 
term  of  October,  1854,  by  William  Hoisted  and  Mercer 
Beasley,  counsel  for  the  complainants,  and  William  L. 
Dayton,  of  counsel  for  the  defendant,  upon  the  pleadings 
filed. 

On  the  eighteenth  day  of  October,  1854,  a  final  decree 
was  made  ordering  that  the  complainant's  bill  be  dis- 
missed, and  the  injunction  dissolved.  From  this  decree 
an  appeal  was  taken. 

The  Chancellor  furnished  the  court  with  the  following 
opinion,  as  containing  the  reasons  for  his  decree. 

WILLIAMSON.  C.  The  Pacific  Mutual  Insurance  Com 
pany  hold  two  bonds  of  the  complainant,  one  conditioned 
for  the  payment  of  four  thousand  dollars,  and  the  other 
conditioned  for  the  payment  of  two  thousand  dollars  : 
they  are  both  secured  by  mortgage.  After  the  day  men- 
tioned for  payment,  the  company  commenced  an  action 
at  law  upon  the  bonds  in  the  Circuit  Court  of  the  county 
of  Mercer.  Upon  filing  the  bill  of  complaint,  one  of  the 
injunction  masters,  upon  application  to  him,  allowed  an 
injunction  to  issue  restraining  the  further  prosecution  of 
that  suit.  The  defendants  have  answered  the  bill,  and  now 
move  to  dissolve  the  injunction. 

The  first  allegation  in  the  bill,  and  one  which  is  made 
a  distinct  ground  upon  which  the  complainant  claims  the 
protection  of  the  court  is  the  following :  by  the  second 
section  of  the  act  incoqx>rating  this  company,  it  is  en- 
acted, "  that  the  capital  stock  of  said  company  shall  be 
two  hundred  and  fifty  thousand  dollars,  divided  into 
shares  of  fifty  dollars  each,  and  that  the  whole  of  said 

VOL.  n.  2s 


482      COURT  OF  ERRORS  AND  APPEALS. 

Yard  v.  Insurance  Co. 

capital  stock  shall  be  actually  paid  in  before  it  shall  be 
lawful  for  said  company  to  commence  the  business  of  in- 
surance." It  is  further  enacted,  by  the  tenth  section  of 
the  act,  that  the  company  may  invest  their  capital  and  ac- 
cumulating premiums,  from  lime  to  time,  in  public  stocks, 
bonds,  and  mortgages,  and  such  other  securities  as  the  di- 
rectors may  approve.  By  another  section  of  the  act,  four 
individuals  are  named  as  commissioners  to  open  books 
for  the  subscription  of  the  capital  stock,  and  are  author- 
ized, as  soon  as  two  thousand  shares  are  subscribed,  to 
appoint  an  hour  and  place  for  holding  the  first  election 
for  directors.  After  setting  out  the  seportions  of  the  act, 
the  bill  states  that  the  capital  stock  was  never  actually 
paid  in,  and  that  therefore  the  company  had  no  right  to 
commence  the  business  of  insurance  ;  that  in  lieu  of  the 
cash  which  the  said  charter  required  to  be  paid  for  sub- 
scriptions to  the  capital  stock  of  the  said  company,  the 
directors  of  the  said  company,  in  direct  violation  of  the 
provisions  of  the  second  section  of  the  said  act,  and  in 
fraud  of  the  said  act,  for  the  purpose  of  evading  and 
avoiding  the  provisions  of  the  said  act,  took  in  payment 
of  subscriptions  for  stock  in  said  company  the  bonds  and 
mortgages  of  individuals,  and  in  gross  violation  of  their 
duty  as  directors,  agreed  to  receive  the  bonds  and  mort- 
gages of  individuals  instead  of  cash,  in  payment  of  such 
subscriptions  for  stock,  and  to  consider  the  same  as  part 
of  their  capital  stock  ;  that  the  complainant,  relying  upon 
the  representations  of  Joseph  C.  Potts,  president  of  the 
company,  that  he,  the  complainant,  could  lawfully  and 
rightfully  pay  for  any  amount  of  stock  which  he  might 
subscribe  for  without  paying  any  money,  but  simply  by 
giving  his  bond  and  mortgage  for  the  amount,  and  upon 
the  further  representation  that  he,  the  complainant,  would 
not  be  called  on  to  pay  any  money,  and  that  the  dividends 
on  the  stock  would  more  than  pay  the  interest  on  his 
bonds  and  mortgage,  and  that  the  business  of  the  com- 
pany would  be  very  profitable,  was  induced  to  give  his 


MARCH  TERM,  1856.  483 


Yard  v.  Insurance  Co. 


said  two  bonds  and  the  mortgage  to  the  company.  The 
bill  further  alleges,  on  this  part  of  the  case,  that  it  was 
agreed  between  the  complainant  and  Joseph  C.  Potts, 
president,  that  the  bonds  were  not  to  be  paid  until  the 
same  were  required  for  the  purpose  of  paying  the  losses 
which  might  occur  by  fire  to  houses,  buildings  and  pro- 
perty lawfully  insured.  It  is  then  alleged  that  the  capital 
stock  of  $250,000  never  having  been  actually  paid  in,  the 
company  was  never  authorized  to  commence  the  business 
of  insuring,  and  that  all  the  policies  and  contracts  of  in- 
surance made  by  the  company  are  illegal,  and  that  there- 
fore the  company  has  no  right  to  the  bonds  of  the 
complainant,  for  the  purpose  of  paying  any  losses  on  such 
policies  or  contracts.  The  bill  then  alleges  that  the  bonds 
were  given  for  no  other  consideration  than  in  payment  of 
the  amount  of  stock  which  the  complainant  had  agreed 
to  subscribe,  and  for  which  stock  he  received  a  certificate 
of  the  president,  and  countersigned  by  the  treasurer.  The 
bill  alleges,  that  the  complainant  never  subscribed  for 
any  stock  on  the  books  of  the  company,  at  the  time  the 
books  were  opened  for  the  purpose  by  the  commissioners, 
and  insists  that  the  president  and  treasurer  had  no  right 
to  issue  any  certificate  of  stock,  except  for  such  as  was 
regularly  subscribed  for  before  the  commissioners.  The 
bill  concludes  this  part  of  the  case  by  alleging  that  the 
complainant  has  been  informed,  and  believes,  that  no 
books  of  subscription  were  ever  opened  by  the  commu*- 
sioners  named 'in  the  act,  and  that  the  whole  of  the  pre- 
tended subscription  was  a  fraud  upon  the  law,  and  that 
Joseph  C.  Potts,  president,  had  no  authority  to  accept  a 
bond  and  mortgage  for  the  stock  of  the  company,  and  that, 
therefore,  the  bonds  and  mortgage  are  void. 

These  statements  of  the  bill  present  to  us  one  feature  of 
the  complainant's  case,  and  may  be  disposed  of  as  a  distinct 
ground  upon  which  the  complainant  relies  for  equitable 
relief. 

Admit  it  to  be  true,  that  the  capital  stock  of  $250,000 


COURT  OF  ERRORS  AND  APPEALS. 

Yard  v.  Insurance  Co. 

was  not  J)ona  fide  paid  in,  and  that  the  company  did  com- 
mence the  business  of  insurance  in  violation  of  the  express 
provision  of  the  charter,  ought  this  court  to  interfere  with 
the  suits  brought  upon  these  bonds  in  a  court  of  law,  for 
the  purpose  of  aiding  the  complainants  to  avoid  their 
payment  ? 

In  the  first  place,  the  question  is  a  legal  one,  and  the 
complainant  may  avail  himself  of  it,  as  far  as  it  is  a 
defence  in  the  suit  at  law.  But,  in  the  second  place,  if  it  is 
a  legal  defence,  it  is  not  one  which  a  court  of  equity  will 
aid  a  party  in  making.  The  bonds  were  given  in  the  year 
1851,  in  payment  for  the  stock  of  the  company,  and  the 
complainant  received  his  certificate  of  stock.  Upon  these 
bonds,  as  a  portion  of  their  capital,  the  company  em- 
barked in  business.  The  complainant  stood  ready  to  re- 
ceive the  gains  of  the  speculation.  He  has  been  disap- 
pointed ;  and  now,  when  called  upon  to  pay  his  bonds  in 
order  to  enable  the  company  to  meet  their  losses,  he  sets 
up  that  the  company  insured  upon  the  faith  of  his  bonds 
when  they  should  have  compelled  him  to  pay  the  money, 
instead  of  receiving  his  obligations.  Now,  if  it  is  true 
that  he  is  not  legally  liable  upon  these  bonds,  upon  the 
ground  that  it  is  against  public  policy  to  permit  the  com- 
pany to  enforce  a  bond  given  in  violation  of  law,  the 
complainant  may  have  the  right,  which  this  court  can 
not  deny  him,  to  defend  himself  at  law  and  in  equity 
upon  this  ground,  and  yet  not  be  entitled,  as  a  complain 
ant  in  this  court,  to  be  relieved  against  their  payment.  A 
defendant  may  have  a  good  defence,  of  which,  as  a  defend- 
ant, he  may  have  the  benefit,  but  of  which,  as  a  com- 
plainant, he  could  not  avail  himself,  except  upon  such 
equitable  terms  as  the  court  might  impose.  A  complain- 
ant who  invokes  the  equitable  powers  of  this  court,  will 
be  compelled  to  do  equity  before  he  obtains  its  aid.  In  the 
case  of  Green  v.  Seymour  (3  Sand.  Ch.  It.  285),  a  case 
relied  upon  with  much  confidence  by  the  complainant's 
counsel,  the  court  decided  that  a  corporation  cannot 


MARCH  TERM,  1856.  485 


Yard  v.  Insurance  Co. 


ei  orce  a  mortgage  which  it  has  obtained  by  a  transfer 
*,aken  contrary  to  the  express  provision  of  its  charter,  and 
that  the  mortgagor  may  avail  himself  of  such  illegality, 
and  thereby  show  that  the  corporation  has  no  valid  title 
to  the  mortgage.  In  that  case  the  defendant,  being  brought 
into  court,  had  a  right  to  make  the  defence,  which  the 
court  could  not  refuse  him.  Had  he  been  the  complain- 
ant, seeking  the  equitable  powers  of  the  court  to  relieve 
him,  the  court  might  have  controlled  his  case  without  re- 
gard to  strict  law.  The  principle  is  a  familiar  one.  Usury 
is  a  good  defence  against  the  foreclosure  of  a  mortgage  ; 
but  if  the  mortgagee  commenced  suit  upon  the  bond  and 
mortgage  in  a  court  of  law,  a  court  of  equity  will  not  re- 
move the  case  from  another  jurisdiction  to  aid  a  party  in 
such  a  defence.  It  would  not  relieve  a  complainant  in 
such  a  case  from  the  usury,  without  compelling  him  to 
do  equity  by  paying  the  amount  actually  due,  discount- 
ing the  sum  usuriously  taken.  It  appears  to  me  that, 
under  the  circumstances  of  this  case,  the  court  ought  not 
to  interfere  with  the  proceedings  at  law  to  aid  the  com- 
plainant in  the  legal  defence  (if  it  be  one)  which  he  seeks 
to  set  up  against  the  payment  of  his  bonds  ;  or,  in  other 
words,  the  court  ought  not,  upon  such  an  equity,  to  change 
the  forum  of  litigation  which  the  adversary  has-  selected. 
But  is  the  defence  a  good  one,  either  at  law  or  in  equity  ? 

The  charter  declares  that  the  capital  stock  shall  bp  ac- 
tually paid  in  before  it  shall  be  lawful  for  the  said  com- 
pany to  commence  the  business  of  insurance,  and  the 
company  is  authorized  to  invest  its  capital  in  public 
stocks,  bonds,  and  mortgages,  and  such  other  securities 
as  the  directors  may  approve.  The  object  the  legislature 
had  in  view  was  to  have  a  bona  Jitle  capital  of  $250,000 
provided  and  safely  secured  for  the  beneiit  of  persons 
who  should  become  insured.  If  the  company  had  hud  the 
$250,000  paid  in,  in  specie,  and  had  turned  around  imme- 
diately, and  invested  it,  it  is  admitted  that  the  transac- 
tion would  have  been  in  compliance  with  the  charter,  and 

2s* 


486   COUKT  OF  ERRORS  AND  APPEALS. 

Yard  v.  Insurance  Co. 

that  the  company  might  have  proceeded  at  once  to  the 
business  of  insurance.  If,  then,  the  capital  stock  of  $250,- 
000  was  subscribed,  and  the  directors,  instead  of  going 
through  the  formality  of  receiving  the  money,  and  then 
paying  it  back  and  taking  securities,  took  the  securities 
without  this  ceremony,  were  the  provisions  of  the  charter 
violated,  and  are  all  these  securities  so  taken  void  ?  It 
appears  that  the  whole  $250,000  capital  was  securely  in- 
vested ;  that  the  subscription  to  the  stock  was  made  in 
good  faith ;  that  the  company  went  on  and  extensively 
insured  upon  the  faith  of  this  capital.  Should  the  individ- 
uals who  gave  their  obligations  to  constitute  this  capital 
be  permitted  to  repudiate  them  ?  In  my  judgment  the 
complainant  cannot  be  relieved  from  the  payment  of  his 
bonds  on  this  ground  in  a  court  of  equity. 

But  the  complainant  alleges  actual  fraud  in  the  procuring 
of  his  bonds  and  mortgage. 

First.  That  Joseph  C.  Potts,  the  president  of  the  com- 
pany, represented  to  him  that  he  might  lawfully  subscribe 
for  the  stock  and  pay  for  it  in  his  bonds.  This  was  a 
mere  matter  of  opinion ;  it  was  the  judgment  of  Mr. 
Potts  upon  the  law.  The  complainant  had  the  charter 
before  him.  There  was  no  misrepresentation  of  facts  made 
to  the  complainant. 

Second.  That  Mr.  Potts  represented  that  the  complain- 
ant would  not  be  called  upon  to  pay  any  money,  and  that 
the  dividends  on  the  stock  would  more  thari  pay  the  in- 
terest on  the  bonds,  and  that  the  business  of  the  company 
would  be  very  profitable.  The  answer  admits,  in  sub- 
stance, that  these  representations  were  made  to  the  com- 
plainant, but  denies  that  they  were  made  fraudulently. 
Mr.  Potts  himself  evinced  his  confidence  in  his  assertions 
by  taking  upwards  of  $15,000  of  the  stock  of  the  com- 
pany. This  is  not  such  a  misrepresentation  as  will  justify 
the  interposition  of  a  court  of  equity.  Story's  Eq.  §  191. 
If  the  company,  or  Mr.  Potts,  as  their  lawful  agent,  had 
entered  into  a  parol  agreement  with  the  complainant  that 


MAECII  TEEM,  1856.  487 


Yard  v.  Insurance  Co. 


the  dividends  of  the  stock  should  meet  the  interest  on  the 
bonds,  and  that  his  bonds  should  be  paid  out  of  the  profits 
of  the  business,  the  obligor  could  not  avail  himself  of  such 
a  contract,  either  in  this  court  or  a  court  of  law.  A  valid 
instrument  cannot  thus  be  destroyed  by  parol  evidence ; 
parol  evidence  for  such  a  purpose  would  have  been  inad- 
missible. 

Every  allegation  of  actual  fraud  charged  in  the  bill  is 
negatived  by  the  answer. 

There  is  one  other  ground  upon  which  the  complainant 
asks  the  interference  and  protection  of  the  court.  The 
whole  capital  stock  of  $250,000  is  secured  by  the  bonds 
and  mortgages  of  different  individuals.  The  company 
having  met  with  heavy  losses,  it  became  necessary  to  make 
an  equitable  assessment  upon  the  respective  amounts  due 
from  these  debtors,  in  order  to  enable  the  company  to 
meet  its  liabilities.  Four  assessments,  of  ten  per  cent, 
each,  have  been  made,  and  out  of  sixty  subscribing  stock- 
holders only  six,  including  in  this  number  the  complain- 
ant, have  refused  to  make  payment.  The  company,  on 
account  of  the  disasters  they  have  met  with,  have  ceased 
doing  business.  They  are  unable  to  tell  what  amount  will 
be  required  upon  the  bonds  and  mortgages  they  hold  to 
meet  their  liabilities.  The  complainant  asks,  first,  that 
an  account  may  be  taken  in  this  court  of  all  the  concerns 
of  the  company,  and,  as  he  is  liable  only  to  pay  his  pro- 
portion -of  any  losses,  that  the  suit  at  law  may  be  re- 
strained until  such  accounts  are  taken  and  such  proportion 
ascertained.  But  why  should  the  defendants  be  compelled 
to  settle  their  accounts  in  this  court  ?  It  would  only  em- 
barrass the  coihpany,  and  be  a  useless  expense.  One  stock- 
holder in  a  company,  because  he  has  an  unsettled  account 
with  them,  or  any  other  matter  of  dispute,  has  no  right  to 
bring  a  company  into  this  court  to  settle  all  their  accounts 
as  a  company. 

But,  second,  the  complainant  insists  that  all  the  com- 
pany are  entitled  to  receive  of  him  is  the  amount  of  four 


488   COURT  OF  ERRORS  AND  APPEALS. 

Yard  v.  Insurance  Co. 

instalments  of  ten  per  cent.,  being  the  same  amount  re- 
quired of  the  other  bondholders.  At  law,  the  company 
may  enforce  the  payment  of  the  whole  amount  due  upon 
the  bonds,  while,  it  is  true,  in  equity  they  are  entitled  to 
call  for  no  more  than  the  like  assessment  they  have  made 
upon  the  other  stockholders.  "When  the  complainant  does 
equity  the  court  will  protect  him.  Let  him  pay  up  the  in- 
stalments already  assessed  and  the  costs  of  the  suit  at  law, 
and  this  court  will  protect  him  against  any  assessment 
not  levied  upon  other  stockholders. 

The  company  demand  of  him  nothing  more  than  his 
equal  assessment.  They  offered,  and  are  still  willing  to 
take  from  him  his  fair  proportion.  They  ask  nothing 
more.  He  compelled  them  to  sue  on  the  bonds.  He  must 
place  himself  right  in  court  before  it  will  interfere  on  his 
behalf. 

The  injunction  must  be  dismissed  with  costs. 

The  appeal  was  argued  by 
Hoisted  and  Beasley,  for  appellant. 
Dayton,  for  respondent. 

The  opinion  of  the  court  was  delivered  by 

ELMER,  J.  "Whatever  might  be  the  result  if  the  question 
was  directly  before  the  court  whether  the  company  was 
ever  legally  organized,  it  is  clear  that  the  appellant  cannot 
now  dispute  that  fact.  He  gave  to  them  his  bonds  and 
mortgages,  thus  acknowledging  them  to  be  a  corporate 
body,  and  calls  them  before  the  court  as  such.  If  the  pro- 
ceeding was  illegal,  he  was  a  party  to  that  illegality,  and 
cannot  invoke  the  powers  of  a  court  of  equity  to  aid  him 
in  defending  himself  from  the  consequences  of  his  own 
voluntary  acts. 

So  far  from  being  against  public  policy  to  enforce  the 
payment  of  the  appellant's  bonds,  public  policy  requires 


MARCH  TEEM,  1856.  489 


Woodruff  v.   Water  Power  Co. 


that  it  be  done,  otherwise  entirely  innocent  parties  would 
suffer.  The  allegations  of  fraud  contained  in  the  bill  are 
distinctly  and  fully  denied  in  the  answer.  The  money 
sought  to  be  recovered  is  required  to  pay  losses  incurred 
in  the  regular  business  of  the  company,  and  the  appellant 
is  required  to  pay  no  more  of  them  than  his  proper  pro- 
portion. Before  he  can  ask  relief,  he  must  offer  to  do 
what  is  equitable  and  just  on  his  part,  that  is  pay  the  in- 
stalments assessed  on  him  and  the  costs  of  the  suit  at 
law.  The  decree  of  the  Chancellor  must  be  affirmed  with 
costs. 

Decision  affirmed  by  the  following  vote  : 

For  affirmance — CHIEF  JUSTICE,  JUDGES  AREOWSMTTH, 
RlSLEY,  CORNELISON,  HAINES  RYERSON,  ELMEB,  OGDEN, 
VALENTINE,  WILLS. 

For  reversal — None. 

CITED  in  Brewer  v.  Marshall,  3  C.  E.  Or.  344. 


Between  PATRICK  H.  "WOODRUFF  and  DICKINSON  "WOOD- 
BUFF,  appellants,  and  THE  TRENTON  WATER  POWER  COM- 
PANY, respondents. 

The  owner  of  a  valuable  farm,  situated  on  the  river  Delaware,  conveyed  to 
the  Trenton  Delaware  Falls  Company,  their  successors  and  assigns,  a  portion 
of  his  farm  adjoining  the  river,  and  across  which  they  had  located  their 
main  raceway,  "subject  nevertheless  to  the  following  proviso  :  that  if  the 
said  main  raceway  shall  not  be  made  on  said  premises  in  conformity  to  the 
act  incorporating  said  company,  the  said  lands  and  premises  shall  revert  to 
the  said  George  Woodruff,  his  heirs  and  assigns.  And  also,  that  the  said  party 
of  the  second  part  shall  erect,  maintain,  and  keep  in  good  repair,  a  safe,  COM. 
venient,  and  substantial  bridge  across  said  main  raceway,  at  a  place  to  be 
designated  by  the  said  grantor  ;  and  also  cause  to  be  made  and  kept  in  order 
a  convenient  landing  place  on  the  side  next  the  river  Delaware,  so  that 
wagons  may  at  all  times  safely  pass  over  the  same  :  and  shall  also  erect  and 
maintain  all  necessary  fences  across  the  said  main  f-iceway,  together  with 


490          COURT  OF  EEEOES  AND  APPEALS. 

Woodruff  v.  Water  Power  Co. 

fences  across  the  said  premises,  and  shall  also  permit  the  said  party  of  the 
first  part  to  use  the  said  raceway  to  give  drink  to  his  cattle,  and  also  to  take 
ice  therefrom  to  fill  his  ice-house."  The  grantees  cut  the  main  race  way,  and 
it  came  into  the  possession  of  the  defendants,  as  assignees  of  the  grantees, 
by  virtue  of  several  acts  of  the  legislature.  The  bill  alleges  that  the  grantees 
!  and  the  defendants  have  always  refused  to  perform  their  said  covenants  and 
agreements,  and  prays  a  specific  performance  and  compensation  for  the  in- 
jury sustained. 

Held,  1st,  that  if  the  matters  mentioned  in  the  proviso  of  the  deed  could  be 
legally  regarded  as  covenants,  and  as  such  be  enforced  at  law,  the  court 
would  have  no  difficulty  in  declaring  them  to  be  covenants  relating  to  the 
realty  and  running  with  the  land,  and  that  both  the  liability  to  perform 
them,  and  the  right  to  take  advantage  of  them,  passed  to  the  assignee  of 
the  land  and  of  the  reversion.  Such  a  construction  would  not  conflict  with 
the  principles  established  in  Spencer's  case,  5  Coke  16. 

2d.  That  there  are  no  covenants  contained  in  the  deed  on  the  part  of  the  gran- 
tees. A  condition  is  quite  distinct  from  a  covenant.  The  language  is  ap- 
propriate to  create  a  condition,  and  as  if  to  avoid  any  doubt,  the  legal  con- 
sequences of  a  breach  or  violation  of  the  condition  is  inserted. 

Upon  covenants,  the  legal  responsibility  of  their  nonfulfilment  is,  that  the 
party  violating  them  must  respond  in  damages  ;  the  consequence  of  the 
nonfulfilment  of  a  condition  is  a  forfeiture  of  the  estate. 

This  court  cannot  enforce  the  specific  performance  in  a  deed,  the  nonperform- 
ance  of  which  works  a  forfeiture  of  the  estate.  The  grantor  has  fixed  his 
own  remedy,  and  can  forfeit  the  estate  at  his  pleasure.  \ 


The  bill  alleges,  that  George  Woodruff  was  in  his  life- 
time seized  and  possessed  in  fee  simple  of  a  certain  farm, 
situate  in  the  township  of  Ewing,  in  said  county,  called 
Oaklands,  containing  about  one  hundred  and  eighty  acres, 
upon  which  was  situate  a  valuable  mansion  house  and 
outbuildings,  and  upon  which  he  resided  with  his  family 
for  many  years  next  preceding  his  decease ;  that  the  said 
farm  was  situate  upon  the  river  Delaware,  and  had  an  ex- 
tended front  upon  and  along  the  same,  running  down  to 
low  water  mark,  which  afforded  at  all  points  an  easy  and 
convenient  access  to  said  river,  so  that  it  could  be  and 
was  much  resorted  to  and  used  by  said  George  "Woodruff 
and  his  family,  and  persons  occupying  and  using  said  farm 
under  him,  for  the  purposes  of  bathing,  boating,  fishing, 
watering  cattle,  and  procuring  ice  in  winter,  and  for  other 
purposes  of  business  and  pleasure.  And  the  value  of  said 
farm,  both  as  a  desirable  residence  and  for  the  purposes 


MAECH  TEEM.  1856.  491 

Woodruff  v.  Water  Power  Co. 

of  cultivation,  was  much  increased  by  its  situation  upon 
said  river,  and  the  ease  and  convenience  with  which  the 
advantages  thereof  could  be  used  and  enjoyed  ;  that  by 
an  act  of  the  legislature  of  this  state,  passed  on  the  six- 
teenth day  of  Tebruary,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  thirty-one,  entitled,  "  An  act  to 
incorporate  a  company  to  create  a  water  power  at  the  city 
of  Trenton  and  its  vicinity,  and  for  other  pui  poses,"  a 
company  was  incorporated,  by  the  name  of  "  the  Trenton 
Delaware  Falls  Company,"  for  the  purposes  and  with  the 
powers  and  privileges  therein  described,  and  by  that  name 
were  by  said  act  declared  to  be  a  body  politic  and  corpo- 
rate in  fact  and  in  law,  and  among  other  things  in  and  by 
said  act  mentioned,  the  said  company  were  thereby  em- 
powered, in  order  to  create  a  water  power,  to  erect  a  wing- 
dam  in  the  Delaware  river  between  the  mouth  of  the  As- 
sanpink  creek  and  the  head  of  Wells'  falls,  and  also  to 
cut  a  main  raceway  from  said  wingdam,  in  and  along  and 
near  the  bank  of  said  river,  to  a  point  below  the  city  of 
Trenton,  and  also  lateral  raceways  from  said  main  race- 
way to  the  river  Delaware  ;  that  the  said  company  was 
duly  organized  under  the  said  act,  and  went  into  operation 
under  the  same,  and  proceeded  to  erect  and  make,  and 
did  erect  and  make  said  wingdam  and  said  main  raceway, 
and  other  works,  in  pursuance  of  the  authority  given  them 
in  and  by  said  act  ;  that  the  route  of  said  main  raceway, 
as  laid  by  the  said  company,  was  across  that  part  of  said 
farm  of  the  said  George  "Woodruff  which  lay  next  the 
said  river  Delaware,  and  it  was  necessary  for  said  com- 
pany to  have  a  portion  of  said  lands,  in  order  to  cut  and 
make  said  raceway  ;  that  the  said  company  applied  to  the 
said  George  Woodruff  to  sell  and  convey  to  them  that 
part  of  his  said  farm  which  lay  adjoining  to  said  river,  in 
order  that  they  might  make  thereon  that  part  of  their 
main  raceway  which  lay  across  his  said  farm,  according 
to  the  route  designated  and  fixed  by  said  company  under 
their  charter,  and  the  said  George  Woodruff  agreed  to  do 


492      COURT  OF  ERRORS  AND  APPEALS. 

Woodruff  v.  Water  Power  Co. 

so  for  a  consideration  agreed  upon  between  him  and  said 
company,  and  which  is  expressed  in  the  deed  which  he 
executed  to  them,  as  is  hereinafter  stated,  to  wit,  the 
sum  of  three  hundred  dollars  and  of  certain  privileges 
granted  to  him,  and  of  certain  covenants  and  agreements 
to  be  performed  and  kept  on  the  part  of  said  company, 
and  in  said  deed  contained,  as  is  hereinafter  more  fully 
expressed  and  set  forth  ;  that  in  pursuance  of  said  agree- 
ment, the  said  George  Woodruff  and  Jean  his  wife,  on  or 
about  the  twenty-sixth  day  of  January,  in  the  year  of  our 
Lord  eighteen  hundred  and  thirty-two,  did,  in  and  by  a  cer- 
tain deed  of  conveyance,  bearing  date  on  the  day  and  year 
last  aforesaid,  made  between  the  said  George  Woodruff  and 
Jean  his  wife,  of  the  first  part,  and  the  said  the  Trenton 
Delaware  Falls  Company,  of  the  second  part,  in  considera- 
tion of  the  sum  of  three  hundred  dollars,  to  them  the 
said  grantors  paid,  and  of  the  covenants  and  agreements 
in  said  deed  contained,  grant,  bargain,  sell  and  convey 
unto  the  said  company,  their  successors  and  assigns,  in 
fee  simple,  the  following  described  portion  of  said  farm, 
being  all  that  part  thereof  which  lay  adjoining  and  next 
to  the  river  Delaware,  to  wit  :  beginning  at  low  water 
mark  of  the  river  Delaware,  at  line  of  lands  of  John  Ti- 
tus ;  thence  by  said  line  north,  forty-four  degrees  east, 
one  chain  and  twenty-five  links  ;  thence  north,  fifty-nine 
and  a  half  degrees  west,  four  chains  ;  thence  north,  fifty- 
nine  degrees  west,  two  chains  ;  thence  north,  sixty-one 
degrees  west,  three  chains  ;  thence  north  sixty-six  de- 
grees west,  twelve  chains  and  six  links,  to  Hill's  line  ; 
thence  by  said  line  south,  thirty  degrees  west,  one  chain 
and  twenty  links  to  low  water  mark ;  thence  by  low  water 
mark,  the  several  courses  thereof,  to  the  place  of  beginr 
ning,  containing  two  acres  and  sixty-three  hundredths  of 
an  acre,  subject  nevertheless  to  the  following  proviso  and 
covenants,  contained  in  said  deed,  and  therein  set  forth,  as 
follows,  to  wit  :  "  subject  nevertheless  to  the  following 
proviso,  that  if  the  said  main  raceway  shall  not  be  made 


MAECH  TEEM,  1856.  493 


Woodruff  v.  Water  Power  Co. 


on  said  premises  in  conformity  to  the  act  incorporating 
said  company,  the  said  lands  and  premises  shall  revert  to 
the  said  George  "Woodruff,  his  heirs  and  assigns.  And 
also,  that  the  said  party  of  the  second  part  shall  erect, 
maintain,  and  keep  in  good  repair  a  safe,  convenient,  and 
substantial  bridge  across  said  main  raceway,  at  a  place  to 
be  designated  by  the  said  George  Woodruff,  and  also 
cause  to  be  made  and  kept  in  order  a  convenient  landing 
place  on  the  side  next  the  river  Delaware,  so  that  wagons 
may  at  all  times  safely  pass  over  thereon,  and  shall  also 
erect  and  maintain  all  necessary  fences  across  the  said 
main  raceway,  together  with  fences  across  the  said  pre- 
mises where  the  lines  of  the  aforesaid  John  Titus  and  Jas- 
per S.  Hill  cross  the  said  main  raceway,  and  shall  also  per- 
mit the  said  party  of  the  first  part  to  use  the  said  raceway 
to  give  drink  to  his  cattle,  and  also  to  take  ice  therefrom 
to  fill  his  ice-house,  said  party  of  the  first  part  so  to  use 
said  privileges  that  no  damage  shall  accrue  to  said  race- 
way," which  said  deed  was  afterwards,  and  on  the  day 
and  year  last  aforesaid,  duly  acknowledged  by  said  party 
of  the  first  part,  and  delivered  to  the  said  company,  and 
recorded  in  the  clerk's  office  of  the  county  of  Hunterdon, 
in  which  said  lands  were  then  situate,  and  your  orators 
pray  leave  to  refer  to  said  record  or  to  said  deed,  if  the 
same  shall  be  produced ;  that  the  said  company,  shortly 
after  the  said  deed  was  executed  and  delivered  to  them  as 
aforesaid,  entered  upon  and  took  possession  of  said  lands 
and  premises  thereby  conveyed  to  them,  and  cut  and  made, 
through  and  across  the  same,  the  main  raceway,  which  by 
the  said  act  they  were  empowered  to  make  from  their 
wingdam  to  a  point  below  Trenton,  as  aforesaid,  and  that 
said  premises  have  been  ever  since  held  and  occupied  for 
their  own  use  by  the  said  company;  or  those  claiming 
under  them ;  that  the  said  company,  having  made  and 
erected  their  said  main  raceway  and  other  works  under 
their  said  charter,  thereby  created  an  extensive  and  valua- 
ble water  power,  which  they  used  and  leased  for  manu- 
YOL.  n.  2  T 


494      COUKT  OF  EREOES  AND  APPEALS. 

Woodruff  v.  Water  Power  Co. 

facturing  or  other  purposes,  and  that  they  received  from 
time  to  time  a  large  income  therefrom  ;  that  some  time  in 
the  year  eighteen  hundred  and  forty-three,  it  was  alleged 
that  the  said  company  had  become  insolvent,  and  a  bill 
was  then  filed  against  them  in  this  honorable  court  by 
Andrew  Carrigan,  one  of  their  creditors,  under  the  act 
entitled,  "  An  act  to  prevent  frauds  by  incorporated  com- 
panies," and  such  proceedings  were  had  thereon  that  by 
an  order  of  this  court,  made  in  said  cause,  James  Ewing, 
Thomas  J.  Stryker,  and  Philemon  Dickinson  were  ap- 
pointed receivers  of  said  company,  with  full  powers  to 
sell,  convey,  and  dispose  of  the  real  and  personal  estate, 
works,  and  franchises,  of  said  company,  according  to  law, 
as  in  and  by  said  proceedings,  now  on  file  in  this  court, 
and  to  which .  your  orators  pray  leave  to  refer,  will  fully 
and  at  large  appear.  And  the  said  receivers  did,  on  or 
about  the  twentieth  day  of  February,  in  the  year  of  our 
Lord  eighteen  hundred  and  forty-four,  sell  the  real  estate 
(including  said  raceway)  and  the  works  and  franchises  of 
said  company  at  public  sale,  to  the  highest  bidder,  and  did 
afterwards,  and  on  or  about  the  eighth  day  of  March,  in 
the  year  last  aforesaid,  execute  and  deliver  to  the  pur- 
chasers thereof  a  deed  conveying  to  them  the  said  real 
estate,  raceway,  works,  and  franchises  in  fee  simple  ;  that 
before  the  said  sale  was  made,  to  wit,  on  the  fifteenth  day 
of  February,  in  the  year  of  our  Lord  eighteen  hundred 
and  forty-three,  an  act  was  passed  by  the  legislature  of 
this  state  entitled,  "  An  act  to  relieve  the  creditors  of  the 
Trenton  Delaware  Falls  Company,"  whereby  it  was,  among 
other  things,  enacted  and  declared  that  the  purchasers  oi 
the  real  estate,  franchises,  and  works  of  said  company 
should  hold  the  said  works,  franchises,  and  real  estate  as 
,  a  joint  stock  company,  in  the  same  manne'r  as  the  origi- 
nal stockholders  held  the  same,  provided  that  they  should 
not  extend  their  capital  beyond  the  limits  of  the  charter, 
or  in  any  wise  contravene  the  provisions  thereof ;  and  pro- 
vided further,  that  after  said  purchase,  the  said  company 


MARCH  TEEM,  1856.  495 


Woodruff  r.  Water  Power  Co. 


should  be  known  as  "  the  Trenton  Water  Power  Company," 
and  by  that  name  might  sue  and  be  sued,  and  have  a  com- 
mon seal,  and  exercise  all  its  corporate  powers ;  that  by 
virtue  of  the  said  last  mentioned  statute,  the  corporate 
name  of  the  said  corporation  was,  upon  the  sale  of  the 
said  real  estate,  works,  and  franchises  by  the  receivers  as 
aforesaid,  changed,  from  the  title  given  to  it,  in  and  by 
its  original  cliarter,  to  the  name  of  "  the  Trenton  Water 
Power  Company,"  by  which  last  mentioned  name  the  said 
corporation  was  thereafter  to  be  known  in  law,  and  to  sue 
and  be  sued,  and  to  exercise  all  its  corporate  powers,  and 
that  the  purchasers  of  the  said  real  estate,  works,  and 
franchises  were,  under  said  act,  to  hold  and  did  hold  the 
same  as  a  joint  stock  company,  in  the  same  manner  as 
the  original  stockholders  held  the  same.  And  the  said 
purchasers  did  accordingly,  on  or  about  the  second  day  of 
January,  in  the  year  of  our  Lord  eighteen  hundred  and 
forty-four,  organize  themselves  under  the  name  of  "the 
Trenton  Water  Power  Company,"  and  by  that  name,  as  a 
body  politic  and  corporate  in  law,  have  ever  since  claimed, 
held,  exercised,  and  enjoyed,  and  do  still  claim,  hold,  ex- 
ercise, and  enjoy,  subject  however  to  the  provisions  of  the 
original  charter,  all  the  corporate  powers  of  the  said  cor- 
poration, and  all  the  real  estate,  works,  and  franchises  so 
as  aforesaid  sold  and  conveyed  by  said  receivers,  and  in 
which  is  included  the  real  estate  sold  and  conveyed  by  the 
said  George  Woodruff,  in  manner  aforesaid ;  that  the 
whole  river  front,  which  the  said  farm  of  the  said  George 
Woodruff,  formerly  had  upon  the  river  Delaware  was,  by 
the  conveyance  by  him  to  said  company,  of  the  premises 
above  described,  and  the  making  of  said  main  raceway 
through  and  across  the  same,  entirely  cut  off  and  taken 
away,  and  he  and  all  persons  holding  and  using  said  farm 
were  deprived  of  all  benefits  and  advantages  formerly 
enjoyed  from  an  easy  access  to  said  river ;  that  the  said 
George  Woodruff  held  and  possessed  said  farm,  as  the 
owner  thereof  in  fee  simple,  from  the  time  of  the  afore- 


496    COUET  OF  ERRORS  AND  APPEALS. 

Woodruff  r.  Water  Power  Co. 

said  sale  of  a  part  thereof  to  said  company  until,  some 
time  in  the  month  of  September,  in  the  year  of  our  Lord 
eighteen  hundred  and  forty-six,  when  he  departed  this 
life,  leaving  a  last  will  and  testament,  executed  in  due 
form  of  law  to  pass  real  estate,  and  therein  appointing 
his  wife,  Jean  Woodruff,  and  your  orator,  Patrick  Hous- 
toun  Woodruff,  the  executors  thereof ;  that  the  eaid  Jean 
Woodruff,  desiring  not  to  act  as  executrix  of  said  will, 
your  orator,  Patrick  Houstoun  Woodruff,  duly'  proved  the 
same  before  the  surrogate  of  the  county  of  Mercer  afore- 
said, and  received  from  him  a  grant  of  letters  testament- 
ary thereon,  and  took  upon  himself  the  execution  thereof, 
as  by  said  letters,  bearing  date  on  the  fourteenth  day  of 
September,  in  the  year  of  our  Lord  eighteen  hundred  and 
forty-six,  now  in  your  orator's  custody  and  ready  to  be 
produced,  will  fully  appear ;  that  in  and  by  said  last  will 
and  testament,  the  said  George  Woodruff  devised  his  said 
farm  unto  your  orators  and  their  two  brothers,  Robert  J. 
Woodruff  and  Thomas  M.  Woodruff,  in  fee  simple,  sub- 
ject to  the  life  estate  therein  of  his  wife,  the  said  Jean 
Woodruff,  who  afterwards,  in  the  month  of  April,  in  the 
year  of  our  Lord  eighteen  hundred  and  forty-eight,  de- 
parted this  life,  and  to  the  payment  of  a  certain  legacy 
unto  their  sister  Mary,  wife  of  Charles  L.  Pearson,  which 
hath  since  been  fully  paid  and  discharged,  and  that  after- 
wards, and  on  or  about  the  fourteenth  day  of  October,  in 
the  year  of  our  Lord  eighteen  hundred  and  fifty-one,  the 
said  Robert  J.  Woodruff  and  Thomas  M.  Woodruff,  con- 
veyed all  their  estate  and  interest  in  said  farm  unto  your 
orator,  Patrick  Houstoun  Woodruff,  in  fee  simple,  as  by 
their  deed  of  conveyence  to  him,  bearing  date  on  the  day 
and  year  last  aforesaid,  and  now  in  his  custody  and  ready 
to  be  produced,  will  appear,  by  means  whereof  your  ora- 
tors are  now  the  owners,  in  fee  simple,  of  the  said  farm, 
and  of  the  estate  and  interest  which  said  George  Wood- 
ruff had  therein  at  the  time  of  his  decease,  and  they  are 
now  in  the  actual  possession  and  enjoyment  thereof ;  that 


MARCH  TERM,  1856.  497 


"Woodruff  v.  "Water  Power  Co. 


the  said  George  Woodruff,  in  his  lifetime,  and  your  ora- 
tors and  their  two  brothers,  herein  before  named  devisees 
as  aforesaid,  have  at  all  times  kept  and  performed  all  cove- 
nants and  agreements  in  the  said  deed  from  said  George 
Woodruff  contained  on  his  and  their  part  to  be  kept  and 
performed ;  that  by  reason  of  the  matters  herein  before 
set  forth,  and  in  particular  by  reason  of  the  contracts  and 
covenants  contained  in  the  said  deed  from  the  said  George 
Woodruff  to  the  said  the  Trenton  Delaware  Falls  Com- 
pany, the  said  company  were  bound  to  erect,  maintain, 
and  keep  in  good  repair  a  safe,  convenient,  and  substan- 
tial bridge  across  said  main  raceway,  and  also  a  convenient 
landing  place  on  the  side  next  the  river  Delaware,  so  that 
wagons  might  at  all  times  pass  over  thereon  from  the  said 
farm  of  the  said  George  Woodruff,  and  also  to  erect  and 
maintain  fences  across  said  main  raceway  and-  said  pre- 
mises, so  conveyed  by  said  George  Woodruff  to  said  com- 
pany, at  the  places  and  in  the  manner  expressed  in  said 
deed,  and  herein  before  mentioned  and  set  forth.  And 
further,  that  the  name  and  organization  of  the  said  com- 
pany having  been  changed,  as  is  herein  before  set  forth, 
and  said  company  being  now  known  in  law  by  the  name 
of  "  the  Trenton  Water  Power  Company,"  that  the  said 
the  Trenton  Water  Power  Company  are  bound  'to  erect 
and  maintain,  and  keep  in  good  repair,  the  said  bridge, 
landing  place,  and  fences,  and  in  all  things  to  perform  and 
keep  the  said  covenants  and  agreements  in  said  deed  con- 
tained ;  but  neither  the  said  the  Trenton  Delaware  Falls 
Company  nor  the  Trenton  Water  Power  Company  have 
ever  performed  or  kept  said  covenants  and  agreements,  in 
whole  or  in  part,  but  have  wholly  failed  and  neglected  so 
to  do. 

And  the  said  George  Woodruff,  in  his  lifetime,  fre- 
quently applied  to  the  said  the  Trenton  Delaware  Falls 
Company  and  to  the  Trenton  Water  Power  Company, 
and  requested  them  to  keep  and  perform  said  covenants, 
and  to  erect  and  maintain  naid  bridge  and  landing  place 

2  T* 


498   COUET  OF  ERRORS  AXD  APPEALS. 

Woodruff  v.  Water  Power  Co. 

and  fences  in  the  manner  required  by  said  covenants,  and 
in  all   things   to  fulfil  the   requirements  thereof,  and  they 
frequently  promised  to  do   so,  but  have  always  failed  and 
neglected  to  attend  to  the  same.     And  since  the  decease 
of  the  said   George  Woodruff,  your  orators  and  their  bro- 
thers, herein  before  named,  have,  by  themselves  and  their 
agents,  frequently   applied  to  the  said  the   Trenton  Water 
Power  Company,  and  have  pointed  out  the  place  at  which 
they  wished  the  bridge  from  said  farm  across  said  main 
raceway  to  be  erected,  to  wit,  at  the  place  opposite  to  the 
end  of  the  lane  running  from  the  feeder  of  the  Delaware 
and  Raritan   canal    to  the  main  raceway    aforesaid,   and 
have  requested  said  company  to   perform   said   covenants 
and  to  erect  and  maintaim  said   bridge,  landing  place,  and 
fences,  and  also  to  pay  them  a  compensation  or  damages 
for  the  injury  sustained  from   the  failure  of  said  company 
to  erect  and  maintain  the  same,  as  by  said  covenants  they 
were  bound  to  do  ;   and  the  said   company  frequently  pro- 
mised   them  that    they  would  do   so,   or  if   it  would  be 
equally  satisfactory,  that  the  company  would  pay  your  ora- 
tors and  their  co-devisees  aforesaid,   a  sum  of   money  in 
lieu  of   the  performance  of   said  covenants ;  but  the  said 
company   have  always  failed    to    keep  said  promises,  and 
have  never  erected    any  bridge,  landing    place,  or.  fences 
upon  said  premises,  nor  in  any  manner  performed  the  said 
covenants,  or  any  part  thereof ;  that  from  the  time  of  the 
making  of  said  main  raceway  until  the  present  time,  there 
has  been  no  bridge   or  fences  across   said  main  raceway 
upon  said  farm   erected   or   maintained  by  the  said  com- 
pany, either  under  its  former  or  its  present  name,  and  the 
said   George  Woodruff  and  your   orators,  and   all  persons 
holding  and  using  said  farm  under  him  or  them,  have  in 
various   ways   suffered,   and   your   orators   do   still  suffer, 
much  inconvenience  and  loss  for  the  want   of  the  same ; 
that  for  the  want  of   such   bridge  and  landing  place,  they 
have  not  been   able  to   cross  said   main  raceway  from  said 
farm  to  said  river  with  their  cattle,  horses  and  w^agons,  as 


MAECH  TEEM,  1856.  499 


Woodruff  v.  Water  Power  Co. 


they  otherwise  might  have  done,  and  which  would  have 
been  of  material  service  to  them ;  that  for  want  of  the 
fences  which  said  company  were  bound  to  erect  and  main- 
tain as  aforesaid,  the  said  George  "Woodruff,  in  his  life- 
time, and  your  orators  since  his  decease,  have  been  com- 
pelled either  to  make  and  maintain  said  fences  at  their 
own  expense  or  to  suffer  their  lands  to  be  exposed  and 
open  to  trespass,  and  they  have  experienced  much  annoy- 
ance and  loss  from  trespasses  by  cattle  and  persons,  and 
have  been  put  to  great  expense  in  putting  up  fences,  by 
reason  of  the  failure  of  said  company  to  make  and  main- 
tain the  fences  which  by  their  said  agreement  they  were 
bound  to  make  and  maintain  as  aforesaid ;  that  the  said 
company,  having  been  frequently  applied  to,  as  aforesaid, 
to  keep  and  perform  the  said  covenants,  and  having  pro- 
mised to  do  so,  but  without  in  any  manner  keeping  such 
promise,  your  orators,  together  with  their  brothers  before 
named,  who  had  not  then  parted  with  their  interest  in 
said  farm,  did,  on  or  about  the  fifth  day  of  December,  in 
the  year  of  our  Lord  eighteen  hundred  and  fifty-one, 
caused  a  notice  and  requirement  in  writing  to  be  served 
upon  the  president  of  the  said  the  Trenton  "Water  Power 
Company,  pointing  out  the  place  where  they  wished  the 
said  bridge  to  be  built  across  said  main  raceway  upon  said 
farm,  being  the  same  place  hereinbefore  in  that  respect 
mentioned,  and  calling  upon  said  company  to  keep  and 
perform  the  covenants  in  said  deed  contained,  and  to  erect 
and  maintain  said  bridge,  landing  place,  and  fences,  and 
to  pay  unto  them  damages  or  compensation  for  the  said 
company's  past  neglect  to  perform  said  covenants,  and 
the  said  company  thereupon  promised  to  do  so,  but  have 
wholly  failed  and  neglected  to  do  it;  that  the  full  and 
faithful  performance  of  said  covenants  by  said  company, 
according  to  the  true  intent  and  meaning  thereof,  would 
afford  your  orators  a  direct  access  to  said  river  with  their 
cattle,  horses,  and  wagons,  and  would  give  them  many 
advantages  in  the  use  and  enjoyment  of  their  eaid  farm 


500      COURT  OF  ERRORS  AND  APPEALS. 

Woodruff  v.  Water  Power  Co. 

of  which  they  are  now  deprived,  and  would  save  them 
from  much  annoyance  and  loss,  which  they  have  long 
suffered  for  the  want  thereof,  and  would  also  increase  the 
market  value  of  their  farm,  in  case  they  wished  to  sell  the 
same ;  that  the  said  George  Woodruff  *  having,  by  the 
deed  hereinbefore  mentioned,  conveyed  to  said  company 
that  part  of  his  said  farm  therein  described  for  the  con- 
sideration, in  part,  of  having  fences  kept  up  and  main- 
tained as  aforesaid,  and  a  bridge  and  landing  place  built 
and  maintained  in  good  order  from  his  said  farm  across 
the  main  raceway  aforesaid,  and  the  said  company  having 
taken  said  land  so  conveyed  to  them,  and  used  and  enjoyed 
the  same  from  that  time  to  the  present,  that  the  said  com- 
pany were  bound  to  keep  and  perform  said  covenants  with 
the  said  George  Woodruff  in  his  lifetime,  and  are  now 
bound  to  keep  and  perform  the  same  with  your  orators, 
who  are  his  heirs  and  devisees,  and  who  now  hold  and  pos- 
sess the  said  farm  in  fee  simple,  by  title  derived  from  him 
in  manner  herein  before  set  forth ;  and  that  the  said  com- 
pany are  also  bound  to  pay  to  your  orators  compensation  or 
damages  for  the  past  omissions  of  said  company  to  keep  and 
perform  the  said  covenants,  &c. 

The  defendants  answered  the  bill,  and  evidence  was 
taken  on  both  sides,  but  the  points  on  which  the  case  was 
decided  sufficiently  appear  from  the  above  synopsis  of  the 
bill.  The  cause  was  argued  in  the  Court  of  Chancery, 
February  term,  1855. 

J.  F.  Randolph,  for  complainants. 

The  complainants  are  entitled  to  the  covenants  in  the 
deed.  They  are  covenants  as  to  realty,  and  run  with  the 
land.  Platt  on  Cov.  523,  529,  232;  Spencer's  case,  5  Co. 
Rep.  17 ;  1  Smith's  Lead.  Cos.  22  ;  5  Halst.  Rep.  20. 

The  complainants,  as  devisees,  are  entitled  to  the  benefit 
of  the  covenants.  2  Bac.  Ab.  62.  No  form  of  language 
necessary.  The  acceptance  of  the  deed  is  sufficient,  although 
not  signed  by  the  party  covenanting. 


MARCH  TERM,  1S56.  501 


Woodruff  v.  Water  Power  Co. 


The  defendants  are  privies  of  the  Tr.enton  Delaware 
Falls  Company,  who  made  the  covenants.  Cardigan's  case, 
\H.  C.R.  Spenc.  Rep.  659. 

Complainants  are  entitled  to  specific  performance  and 
damages.  2  Story's  Eq.  J.  §  721  (a)  ;  Storer  v.  G.  W.  Rail- 
way, 3  Young  &  Collier  48,  53. 

As  to  time.  The  deed  is  dated  January,  1832,  and  the 
bill  filed  13th  June,  1853. 

The  time  is  accounted  for.  The  parties  were  continu- 
ally negotiating.  The  company  was  embarrassed. 

But  defendants  can  take  no  advantage  from  the  lapse 
of  time.  They  hold  by  the  same  deed  which  contains  the 
covenant.  When  they  show  their  title  they  show  their  ob- 
ligation. King  v.  Morford,  Saxtorfs  7?.  279  ;  1  G.  C.  12. 
106  ;  4  J.  C.  R.  287 ;  2*  Stonfs  E<I.  J.  716  (notes). 

C.  S.  Green  and  W.  L.  Dayton,  for  defendants. 

1.  The  deed  contains  no   covenant.     There  is  a   condi- 
tion, but  no  covenant.   The  language  is  plain,  subject  never- 
theless to  the  following  proviso.     It  is  a  condition  merely  ac- 
cording to  all  the  authorities.  2  Com.  Dig.,  title  Condition 
.4.2;  Bouv.  Die.,  title  proviso  ;  Plait  on   Covenants   36, 
37,  28. 

2.  If  it  can  be  construed  as  a   covenant  it  is  personal, 
and  does  not  run  with  the  land.     The  language  is   that  the 
grantees  shall  build  bridge,  &c.,   but   the  word  assigns  is 
not  used.     The  defendants  are  not  bound  according  to 
i'rst  resolution  in  Spencer's  case.  5  Coke  16  ;  Platt  on  Cove- 
nants 471  ;  8  Cow.  269. 

If  the  word  assigns  was  used,  the  defendants  are  not 
bound  according  to  second  resolution  in  Spencer's  ca#e.  5 
Coke  16 ;  Platt  on  Cov.  473  ;  the  Mayor  of  Congleton  v.  Pat- 
tison,  10  East  130.  The  bridge  and  wagon  way  and  landing 
place  are  all  to  be  erected  outside  of  the  land  conveyed.  Cock- 
son  v.  Cox,  Cro.  Jac.  125.  Equity  will  follow  the  law.  Kep- 
peU  v.  Bailey$  Niln  c&  Kean  51 7 ;  8  E.  Cond.  C.  It.  111,125. 

3.  Court   will  not   decree  specific  performance  to  build. 


502      COUKT  OF'EKROES  AND  APPEALS. 

Woodruff  v.  Water  Power  Co. 

2  Story,  §  T25  ;  3  Atk.  512  ;  2  B.  C.  C.  341 ;  3  B.  C.  G. 
156 ;  2b.  159  ;  3  Ves.  185. 

4.  Remedy  complete  at  law  ;  lapse  of  time  ;  change  in 
the  character  of  the  land,  so  as  to  render  it  oppressive  to 
compel  defendants  to  perform,   are  reasons   against  a  de- 
cree. 

5.  The  place  where  the  bridge  was  to   be  built  was   to 
be  fixed  by  G.  "W.,  the  grantor.     He  never  did  fix  it. 

Counsel  further  cited  Hedden  v.  Struten,  5  Pick  528  ; 
4  Kent's  Com.  122,  125. 

At  the  term  of  June,  1855,  a  decree  was  made  dismiss- 
ing the  complainant's  bill  with  costs.  From  this  decree 
an  appeal  was  taken.  The  Chancellor  furnished  the  court 
with  the  following  opinion,  as  containing  the  reasons  for 
his  decree. 

WILLIAMSON,  C.  The  complainants  are  before  the  court 
as  the  devisees  of  George  Woodruff,  deceased.  They 
allege,  in  their  bill,  that  George  "Woodruff  was  seized  and 
possessed  in  fee  simple  of  a  valuable  farm,  of  about  one 
hundred  and  eighty  acres,  situated  on  the  river  Delaware, 
with  an  extensive  front  along  that  river  running  down  to 
low  water  mark,  and  affording  at  all  points  an  easy  and 
convenient  access  to  the  river,  which  was  much  resorted 
to  and  used  by  George  Woodruff  and  his  family,  and  by 
persons  occupying  the  farm  under  him,  for  the  purpose  of 
bathing,  boating,  fishing,  watering  cattle  and  procuring 
ice  in  winter,  and  for  other  purposes  of  business  and  plea- 
sure ;  and  that  the  value  of  the  farm,-  both  as  a  desirable 
residence  and  for  the  purposes  of  cultivation,  was  much 
enhanced  by  its  situation  upon  the  river,  and  the  ease  and 
convenience  with  which  the  advantages  thereof  could  be 
used  and  enjoyed ;  that  the  Trenton  Delaware  Falls  Com- 
pany was  incorporated  by  the  legislature  of  this  state, 
with  power  and  authority  to  cut  a  raceway  for  the  pur- 
pose of  creating  a  water  power  from  the  head  of  Wells' 


MAECH  TEEM,  1856.  503 


Woodruff  v.  Water  Power  Co. 


falls,  in  the  Delaware  river,  in  and  along  and  near  the 
banks  of  said  river,  to  a  point  below  the  city  of  Trenton ; 
that  the  company  located  their  main  raceway  across  that 
part  of  the  farm  of  the  said  George  Woodruff  which  lay 
next  the  river,  so  that  it  was  necessary  for  the  company 
to  have  a  portion  of  the  farm  upon  which  to  construct 
their  work;  that  in  pursuance  of  an  agreement  made  be- 
tween the  said  George  Woodruff  and  the  company,  the 
said  Woodruff  and  wife,  on  the  twenty-sixth,  of  January, 
1832,  did,  in  and  by  a  certain  deed  of  conveyance  made 
between  the  said  George  Woodruff  and  his  wife,  of  the 
first  part,  and  the  said  the  Trenton  Delaware  Falls  Com- 
pany, of  the  second  part,  in  consideration  of  the  sum  of 
three  hundred  dollars  to  them,  the  said  grantors,  paid, 
and  of  the  covenants  and  agreements  in  said  deed  con- 
tained, grant  and  convey  unto  the  said  company,  their 
successors  and  assigns,  in  fee  simple,  the  following  de- 
scribed portion  of  said  farm,  being  all  that  part  thereof 
which  lay  adjoining  and  next  to  the  river  Delaware,  to 
wit :  beginning  at  low  water  mark  of  the  river  Delaware, 
&c.,  containing  two  acres  and  sixty-three  hundredths  of 
an  acre,  subject  nevertheless  to  the  following  proviso  and 
covenants,  contained  in  said  deed  and  therein  set  forth, 
as  follows,  to  wit :  "  subject  nevertheless  to  the  following 
proviso,  that  if  the  said  main  raceway  shall  not  be  made 
on  said  premises  in  conformity  to  the  act  incorporating 
said  company,  the  said  lands  and  premises  shall  revert  to 
the  said  George  Woodruff,  his  heirs  and  assigns.  And 
also,  that  the  said  party  of  'the  second  part  shall  erect, 
maintain,  and  keep  in  good  repair  a  safe,  convenient,  and 
substantial  bridge  across  said  main  raceway,  at  a  place  to 
be  designated  by  the  said  George  Woodruff;  and  also 
cause  to  be  made  and  kept  in  order  a  convenient  landing 
place  on  the  side  next  the  river  Delaware,  so  that  wagons 
may  at  all  times  safely  pass  over  thereon,  and  shall  also 
erect  and  maintain  all  necessary  fences  across  the  said  main 
raceway,  together  with  fences  across  the  said  premises. 


501      COURT  OF  EEROES  AND  APPEALS. 

Woodruff  v.  Water  Power  Co. 

and  shall  also  permit  the  said  party  of  the  first  pa^t  to  use 
the  said  raceway  to  give  drink  to  his  cattle,  and  also  to  take 
ice  therefrom  to  fill  his  ice-house." 

The  bill  alleges  that  the  grantees  cut  the  main  raceway, 
and  that  it  has  been,  and  is  now  used  as  such,  and  that 
it  came  into  the  possession  of  the  defendants,  as  assignees 
of  the  grantees,  by  virtue  of  several  acts  of  the  legislature 
of  the  state ;  that  by  reason  of  the  contracts  and  cove- 
nants contained  in  the  deed  aforesaid,  the  grantees  therein 
named  were  bound  to  erect,  maintain,  and  keep  in  good 
repair  a  safe,  convenient,  and  substantial  bridge  across 
said  main  raceway,  and  a  landing  place,  and  to  erect  and 
maintain  the  fences,  and  that  the  defendants,  as  holding 
under  them,  are  bound  to  perform  their  covenants  and 
agreements ;  that  although  frequently  applied  to  by  the 
said  Woodruff,  in  his  lifetime,  and  by  these  complainants 
since  his  decease,  both  the  said  grantees  and  these  defend- 
ants have  always  refused  to  perform  their  said  covenants 
and  agreements.  The  bill  prays  for  a  specific  performance, 
and  also  compensation  for  the  injury  sustained  by  reason 
of  the  failure  to  perform  and  keep  the  covenants  in  time 
past. 

The  defendants  answered  the  bill,  and  some  evidence 
has  been  taken  on  both  sides ;  but  the  case,  as  I  have  stated 
it  from  the  bill,  presents  the  points  upon  which  I  shall 
decide  the  case. 

If  the  matters  mentioned  in  the  proviso  of  the  deed  could 
be  legally  regarded  as  covenants,  and  as  such  be  enforced 
at  law,  I  should  have  no  difficulty  in  declaring  them  to  be 
covenants  relating  to  the  realty  and  running  with  the  land, 
and  that  both  the  liability  to  perform  them  and  the  right  to 
take  advantage  of  them,  passed  to  the  assignee  of  the  land 
and  of  the  reversion.  It  appears  to  me  that  such  a  con- 
struction would  not  conflict  with  the  principles  established. 
I  use  the  word  established  because  those  principles  have 
ruled  and  regulated  all  subsequent  authorities  in  Spencer's 
case.  5  Coke's  Rep.  17. 


MARCH  TEEM,  1856.  505 


Woodruff  r.  Water  Power  Co. 


It  is  argued  that  the  word  assigns,  being  omitted  in  re- 
ference to  the  things  to  be  performed  by  the  grantees,  and 
the  things  to  be  done  not  being  in  esse  and  parcel  of  the 
premises,  the  defendants,  as  the  assignees  of  the  Trenton 
Delaware  Falls  Company,  are  not  bound ;  that  it  is  directly 
within  Spencer's  case,  and  of  the  first  resolution,  as  there 
laid  down. 

And  it  also  insisted  that,  by  the  principle  laid  down  in 
the  second  resolution  in  Spencer's  case,  the  defendants  are 
not  bound,  because  the  thing  to  be  done  is  collateral  to  the 
land. 

It  was  resolved  (by  the  second  resolution),  that  in  this  case 
(Spencer's  case)  if  the  lessee  had  covenanted  for  him  and 
his  assigns,  that  they  would  make  a  new  wall  upon  some 
part  of  the  thing  demised,  that  forasmuch  as  it  is  to  be 
done  upon  the  land  demised,  that  it  should  bind  the 
assignee ;  for  although  the  covenant  doth  extend  to  a  thing 
to  be  newly  made,  yet  it  is  to  be  made  -upon  the  thing  de- 
mised, and  the  assignee  is  to  take  the  benefit  of  it,  and 
therefore  shall  bind  the  assignee  by  express  words.  But 
although  the  covenant  be  for  him  and  his  assigns,  yet  if 
the  tiling  to  be  done  be  merely  collateral  to  the  land,  and 
doth  not  touch  or  concern  the  thing  demised  in  any  sort, 
there  the  assignee  shall  not  be  charged.  As  if  the  lessee 
covenants  for  him  and  his  assigns  to  build  a  house  upon 
the  land  of  the  lessor  which  is  no  parcel  of  the  demise, 
or  to  pay  any  collateral  sum  to  the  lessor  or  to  a  stranger, 
it  shall  not  bind  the  assignee,  because  it  is  merely  collateral, 
and  in  no  manner  touches  or  concerns  the  thing  that 
was  demised  or  that  is  assigned  over ;  and  therefore  in 
such  case  the  assignee  of  the  thing  demised  cannot  be 
charged  with  it  no  more  than  any  other  stranger. 

In  the  present  case  there  was  nothing  to  be  done  col- 
lateral to  the  land  conveyed.  The  grantor  reserved  to 
himself  a  right  of  way  on  the  main  raceway,  and  also  a 
convenient  landing  place  at  the  river.  This  right  of  way, 
as  well  as  landing  place,  was  an  interest  in  the  thing 

VOL.  n.  2  u 


506       COURT  OF  ERRORS  AND  APPEALS. 

Woodruff  v.  "Water  Power  Co. 

granted,  and  would  pass  as  appurtenant  to  the  grantor's 
farm.  The  thing  to  be  done  upon  the  land  was  the  me- 
dium which  created  the  privity  of  estate  between  the 
grantor  and  the  grantee.  It  was  an  incident  to  the  land 
conveyed,  enuring  to  the  benefit  of  the  grantor  as  the 
owner  in  fee  of  the  adjacent  soil.  It  is  not  like  a  mere 
personal  covenant  which  does  not  affect  or  concern  the 
premises  conveyed,  as  to  build  a  house  or  wall  upon  the 
land  of  the  grantor,  which  is  not  parcel  of  the  thing  granted, 
or  merely  to  pay  a  sum  of  money  to  the  grantor  or  to  a 
stranger. 

In  Bally  v.  Wells  ( WilmoVs  opinion,  341,  3  Wils.  25), 
Lord  Chief  Justice  Wilmot  says,  "the  reason  why  the 
assignees,  though  named,  are  not  bound,  is  because  the 
thing  covenanted  to  be  done  has  not  the  least  reference  to 
the  thing  demised.  It  is  a  substantive  independent  agree- 
ment, not  quodam  modo  but  nullo  modo,  annexed  or  appur- 
tenant to  the  thing  leased."  But  although  this  is  a  cove- 
nant running  with  the  land,  yet,  according  to  the  first 
resolution  in  Spencer's  case,  it  does  not  bind  the  assignee 
not  expressly  named,  if  the  covenant  does  not  extend  to 
a  thing  in  esse  at  the  time  of  the  covenant.  The  principle 
is  well  settled ;  the  only  question  is  as  to  its  application. 
It  does  not  extend  to  repairs.  In  Cockson  v.  Cook  (Cro. 
Jac.  125),  it  was  decided  that  covenant  lies  against  the 
assignee  on  a  covenant  not  to  plough,  although  assignees 
are  not  named  in  the  deed,  for  it  runs  with  the  land,  but 
not  on  a  collateral  act,  as  to  build  de  novo.  And  in  the 
Dean  and  Chapter  of  Windsor's  case  (5  R.  24),  it  was  re- 
solved that  the  assignee  is  bound  to  repair,  though  not 
mentioned  in  the  lease.  To  apply  the  principle  properly, 
it  is  necessary  that  we  should  look  at  the  character  of  the 
thing  covenanted  to  be  done ;  its  connection  with  the 
land ;  the  mode  of  its  enjoyment ;  and  for  whose  benefit 
it  is  intended.  At  the  time  of  the  conveyance  of  this 
land,  it  constituted  the  grantor's  mode  of  access  to  the 
river,  and  also  a  landing  place,  both  of  which  conveni- 


MAKCII  TEEM,  1856.  507 


Woodruff  r.  Water  Power  Co. 


u.ices  were  necessary  to  the  grantor's  beneficial  enjoy- 
ment of  his  property.  That  way  and  landing  place  were 
to  be  kept  good  by  the  grantees.  (I  din  assuming  that  the 
stipulation  named  in  the  proviso  constituted  covenants  on 
the  part  of  the  grantee.)  By  digging  the  raceway,  the 
grantees  destroyed  the  grantor's  access  to  the  river.  The 
reconstruction  of  the  way  and  landing  place  was  not  like 
doing  a  thing  de  novo,  but  a  reparation  of  that  which  had 
been  destroyed.  The  particular  manner  in  which  the  way 
was  to  be  reconstructed  does  not  alter  its  legal  character 
in  this  respect.  A.  covenants  in  a  lease  to  repair;  the 
building  is  destroyed  by  fire ;  the  covenant  can  be  fulfilled 
only  by  erecting  a  new  building.  Suppose  there  had  been 
a  covenant  in  this  deed  by  which  the  grantor  was  always 
to  have  access  to  the  river  by  a  right  of  way  over  the  land 
in  as  convenient  a  manner  as  it  existed  at  the  time  of  the 
grant,  there  cannot  be  a  doubt  but  that  the  assignee  of 
the  grantor  would  have  been  entitled  to  the  benefit  of  the 
covenant,  although  not  named  in  it.  Is  the  covenant  im- 
paired or  limited  in  its  extent  because  it  specified  that 
this  right  of  way  shall  be  in  the  shape  of  a  bridge  to  be 
erected  by  the  covenantor  ? 

But  it  is  unnecessary  to  pursue  this  investigation  any 
further.  There  is  another  point  in  the  case  of  less  diffi- 
culty, which,  I  think,  must  determine  the  rights  of  the 
parties  in  this  court.  There  are  no  covenants  contained 
in  this  deed  on  the  part  of  the  grantees.  They  did  not 
sign  the  deed.  It  is  true  this  is  not  necessary  always.  The 
acceptance  of  the  conveyance  and  the  land  granted  will 
in  some  cases  bind  the  grantees  to  the  performance  of  the 
covenants  ;  but  it  cannot  bind  them  to  covenants  which 
do  not  exist.  I  have  already  recited  all  that  part  of  the 
deed  in  which  it  is  said  the  covenant  exists.  There  is  a 
proviso  by  which  it  is  declared,  that  unless  the  grantees  per- 
form certain  things  specifically  stipulated,  the  said  lands 
and  premises  shall  revert  to  the  said  George  Woodruff. 
A  condition  is  quite  distinct  from  ^.covenant.  The  language 


508    COUET  OF  EEEOES  AND  APPEALS. 

Woodruff  v.  Water  Power  Co. 

in  this  deed  is  appropriate  to  create  a  condition,  and,  as 
if  to  avoid  any  doubt,  the  legal  consequences  of  a  breach 
or  violation  of  the  condition  is  inserted.  Upon  covenants 
the  legal  responsibility  of  their  nonfulfilment  is,  that  the 
party  violating  them  m'ust  respond  in  damages.  The  con- 
sequence of  the  nonfulh'lment  of  a  condition  is  a  forfeit- 
ure of  the  estate.  The  grantor  may  re-enter  at  his  will, 
and  possess  himself  of  his  former  estate.  The  grantees 
were  to  make  'the  raceway  in  conformity  to  their  act  of 
incorporation;  they  were  to  erect,  maintain,  and  keep  in 
good  repair  a  safe  and  substantial  bridge  over  the  race- 
way ;  they  were  to  make  a  landing  place  on  the  river 
Delaware,  and  to  make  and  maintain  the  fences.  But 
they  entered  into  no  covenants  to  do  these  things.  They 
were  to  enjoy  the  land,  provided  they  did  perform  these 
stipulations;  and  they  accepted  the  deed,  and  entered 
upon  the  land  upon  the  condition,  that  if  they  did  not 
perform  them,  they  should  forfeit  all  the  benefits  of  the 
grant.  Unless  these  are  conditions,  then  there  exists  no 
distinction  between  a  condition  and  a  covenant.  Nicoll  v. 
The  New  York  and  Erie  Railroad  Co.,  12  Barb.  S.  G.  Rep. 
4:60  ;  Coke  upon  Litt.,  J)y  Thomas,  4 ;  Com.  Dig.,  Condition 
1,  A.  2 ;  Co.  Litt.  216  C.,  Hamilton  v.  Elliott,  5  Serg  & 
Rawle  375  ;  Platt  on  Cov.  36,  37  ;  Bouv.  Law  Diet.,  title 
Proviso. 

It  appears  to  me  there  can  be  no  question  as  to  the 
proper  legal  construction  of  the  deed.  The  only  question 
then  is,  can  this  court  enforce  the  specific  performance  in 
a  deed,  the  nonperformance  of  which  works  a  forfeiture 
of  the  estate  ?  This  was  not  contended  on  the  argument. 
I  cannot  see  upon  what  principle  the  court  can  exercise 
this  branch  of  its  jurisdiction  in  such  a  case.  The  grantor 
has  fixed  his  own  remedy,  and  can  forfeit  the  estate  at  his 
pleasure.  There  is  no  agreement  upon  which  the  party 
can  maintain  a  suit  at  law  for  damages.  I  admit  that  this 
is  not  a  criterion  universally  applicable.  But  it  is  one 
test.  It  has  many  exceptions,  but  this  is  not  one  of  them. 


MAECH  TERM,  1856.  509 


Woodruff  v.  Water  Power  Co. 


If  any  authority  can  be  furnished  by  counsel,  I  am  will- 
ing to  hear  the  counsel  further  upon  the  point.  My  im- 
pression is  none  can  be  found. 

In  the  case  of  Stuyvesant  v.  The  Mayor,  &c.,  of  New 
York,  11  Paige  414,  there  was  a  condition  in  the  grant 
upon  which  the  title  of  the  corporation  to  the  land  de- 
pended ;  but  there  was  other  and  additional  language  in 
the  deed  which  the  Chancellor  said  amounted  to  a  cove- 
nant on  the  part  of  the  corporation  to  perform  such  con- 
dition. The  deed,  too,  was  executed  by  the  defendants 
under  their  corporate  seal. 

The  defendant  further  insisted  that  this  was  not  such  a 
case  as  to  justify  the  court  in  the  exercise  of  its  peculiar 
jurisdiction  of  decreeing  a  specific  performance.  The 
great  delay  in  applying  to  this  court  for  relief ;  the  fact 
that  George  Woodruff  never  pointed  out  the  place,  as  the 
deed  provided,  where  the  bridge  and  landing  place  should 
be  made  ;  the  change  of  the  original  parties  to  the  con- 
tract ;  the  death  of  the  original  grantor ;  and  the  trans- 
mission of  the  property  by  the  authority  of  the  legisla- 
ture to  others  than  the  original  grantees ;  the  character 
by  which  the  complainants  now  hold,  some  by  purchase 
and  others  by  descent,  these  constitute  serious  objections 
to  the  action  of  this  court.  But  I  am  satisfied  to  decide 
the  cause  upon  the  other  ground. 

The  appeal  was  argued  November  term,  1855,  and  de- 
cided March  term,  1856. 

The  decision  of  the  Chancellor  was  affirmed  by  the  fol- 
lowing vote : 

For  affirmance — CHIEF  JUSTICE,  Judges  ARROWSMTTH, 
ELMER,  HAIXES,  OGDEST,  RISLEY,  VALENTINE,  COKNELISON, 
HUYLEB,  POTTS,  RTERSON,  VREDENBUROH,  WILLS. 

For  reversal — None. 

2u* 


510      COURT  OF  ERRORS  AND  APPEALS. 

Martin  v.  Righter. 


Between  PETER  MARTEN  and  WILLIAM  MARTIN,  appellants, 
and  MICHAEL  RIGHTER  et  al.,  respondents. 

Parol  evidence  is  admissible  for  the  purpose  of  establishing  an  allegation  of 
fraud  in  the  inception  of  a  release. 

Where  the  fact  was  established  that  the  parties  to  a  general  release,  at  the 
time  of  the  execution  of  it,  understood  perfectly  that  the  object,  and  the 
sole  object,  was  to  make  the  relessee  competent  as  a  witness,  in  a  pending 
suit ;  it  cannot  be  used  to  bar  a  recovery  on  a  bond  and  mortgage. 

That  the  relessee  intended  at  the  time  to  make  use  of  the  opportunity  to  ob- 
tain a  general  release,  and  turn  the  transaction  from  an  innocent  to  a 
fraudulent  purpose,  makes  him  a  fraud  doer. 

Where  any  one  has  done  an  act  or  made  a  statement  which  it  would  be  fraud 
on  his  part  to  controvert  or  impair,  and  such  act  or  statement  has  so  influ- 
enced any  one  that  it  has  been  acted  upon,  the  party  making  it  will  be  es- 
topped and  cut  off  from  the  power  of  retraction. 


The  case  sufficiently  appears  from  the  opinions  deliv- 
ered. 

The  cause  was  argued  in  the  Court  of  Chancery,  by  E. 
W.  Whelpley,  for  complainant,  and  L.  A.  Chandler,  for 
defendant. 

At  the  term  of  February,  1855,  a  final  decree  was  made 
by  his  Honor  Benjamin  "Williamson,  Chancellor,  whereby 
it  was  adjudged  that  complainants'  bill  be  dismissed  with 
costs.  From  this  decree  an  appeal  was  taken. 

The  Chancellor  furnished  the  court  with  the  following 
opinion,  as  containing  the  reasons  for  his  decree. 

WILLIAMSON,  C.  On  the  5th  of  July,  1842,  Stephen  W. 
Righter  recovered  against  Michael  Righter,  the  defendant 
in  this  suit,  a  judgment  in  the  Circuit  Court  of  the  county 
of  Morris,  for  the  sum  of  eleven  hundred  and  sixty  dol. 
lars  and  forty-two  cents,  damages  and  costs  of  suit.  Af- 
terwards the  defendant,-  becoming  further  indebted  to  the 
said  Stephen  W.  Righter,  for  the  purpose  of  securing  such 
indebtedness,  and  as  collateraland  further  security  for  the 
judgment  debt,  on  the  seventh  of  September,  1842,  gave 


MARCH   TERM,  1856.  511 

Martin  r.  Righter. 

the  bond  and  mortgage,  in  controversy  in  the  present  suit, 
conditioned  for  the  payment  of  §1333.65  on  demand,  with 
interest.  As  to  the  amount,  or  the  honesty  of  the  debt 
there  is  no  dispute. 

On  the  19th  'of  May,  1847,  Stephen  W.  Righter  exe- 
cuted, in  due  form  of  law  under  his  hand  and  seal,  a  re- 
lease to  the  defendant.  It  expresses  to  be  for  the  consid- 
eration of  one  dollar  paid,  and  to  remise,  release,  and  for 
ever  discharge  the  defendant,  his  heirs,  executors,  and 
administrators,  of  and  from  all  and  all  manner  of  action 
and  actions,  cause  and  causes  of  action,  suits,  debts,  dues, 
sums  of  money,  accounts,  reckonings,  bonds,  bills,  spe- 
cialties, covenants,  contracts,  controversies,  agreements, 
promises,  variance,  trespasses,  damages,  judgments,  ex- 
tents, executions,  claims,  and  demands  whatsoever,  in  law 
or  in  equity,  which  the  said  Stephen  "W.  Righter  ever  had, 
then  had,  or  which  his  heirs,  executors,  or  administrators 
thereafter  could,  should,  or  might  have,  for,  upon,  or  by 
reason  of  any  matter,  cause,  or  thing  whatsoever  from 
the  beginning  of  the  world  to  the  day  of  the  date  of  the 
release. 

This  release  is  set  up  as  a  bar  to  a  recovery  upon  the 
bond  and  mortgage. 

About  eighteen  months  after  the  execution  of  the  re- 
lease, Stephen  "W.  Righter  assigned  the  bond  and  mort- 
gage to  Peter  Martin  and  William  Martin,  the  complain- 
ants. They  caused  an  execution  to  be  issued  upon  the 
judgment.  The  defendant  then  interposed  this  release, 
and  obtained  a  rule  of  the  Circuit  Court  of  the  county  of 
Moms  upon  the  complainants  to  show  cause  why  the 
judgment  should  not  be  cancelled  of  record.  The  com- 
plainants then  filed  this  bill,  praying  that  the  said  release 
may  be  declared  fraudulent  and  void  as  to  them,  or  that 
it  may  be  declared  to  have  been  executed  by  mistake,  or 
that  it  may  be  reformed,  so  far  as  respects  the  bond  and 
mortgage,  so  as  not  to  apply  to  them,  and  that  the  mort- 
gaged premises  may  be  sold,  <fec.  An  injunction  waa 


512      COUET  OF  EEEOES  AND  APPEALS. 

Martin  T>.  Righter. 

allowed.  The  cause  is  now  brought  to  a  final  hearing  upon 
its  merits. 

There  can  be  no  controversy  but  that  the  release  is 
comprehensive  enough  to  include  the  judgment  and  bond 
and  mortgage.  That  release  must  be  removed  out  of  the 
way  before  the  judgment  or  mortgage  can  be  enforced. 
No  parol  testimony  can  be  admitted  for  the  purpose  of 
showing  that  the  intention  of  the  parties,  or  either  of 
them,  was  different  from  that  expressed  in  and  by  the  re- 
lease itself.  If  it  can  be  shown  that  the  instrument  was 
procured  by  fraud,  that  will  vitiate  it,  and  it  will  be  set 
aside  in  toto.  If  it  can  be  shown  fhat  there  was  a  mistake 
in  the  drawing  up  and  executing  it,  for  instance,  that  the 
scrivener  was  instructed  that  in  preparing  the  release  he 
should  exclude  the  judgment  and  mortgage,  and  that  it 
was  executed  under  the  impression  that  it  was  drawn  ac- 
cording to  such  instructions,  but  that  by  mistake  the 
scrivener  had  omitted  to  make  the  exception,  in  such 
case  this  court  will  relieve  the  party  whose  rights  are  af- 
fected by  such  mistake.  But  such  mistake  must  be  esta- 
blished by  evidence  so  clear  and  incontrovertible  that  the 
court  may  feel  an  assurance  that  it  cannot  itself  make 
any  mistake  in  confiding  its  judgment  upon  it.  Courts  of 
equity  have  gone  quite  far  enough  in  reforming  sealed 
instruments.  There  are  instances  where  it  would  seem 
that  the  supposed  hardship  of  the  case  has  had  more  weight 
than  the  evidence  in  influencing  the  judgment  of  the 
court.  Parties  are  not  entitled  to  relief  against  their  own 
mere  carelessness  and  negligence.  A  mistake  in  a  sealed 
instrument  can  be  proved  only  by  reliance  upon  parol 
testimony.  It  is  always  dangerous,  where  parties  have  re- 
duced their  intention  and  agreement  to  writing,  to  under- 
take to  substitute  what  they  intended  to  do  for  that  which 
they  actually  did  do. 

The  complainants  endeavor  to  avoid  the  release  upon 
three  grounds :  first,  fraud ;  second,  mistake ;  third,  that 
the  defendant's  conduct  induced  them  to  advance  their 


MARCH  TERM,  1856.  513 

Martin  r.  Righter. 

money  and  to  purchase  the  judgment  and  mortgage,  and 
that  he  is  chargeable,  therefore,  with  standing  by  and  seeing 
the  complainants  advance  their  money  upon  obligations  of 
his  own  which  were  worthless. 

First.  Was  there  anything  in  the  manner  in  which  the 
release  was  executed  which  subjects  it  to  the  charge  of 
fraud,  or  to  make  it  fraudulent  for  the  defendant  to  apply 
it  to  the  judgment  and  mortgage  ?  Let  us  take  the  case 
as  it  is  made  by  the  bill.  The  bill  alleges,  that  one  Joseph 
C.  Righter,  and  the  defendant,  were  connected  in  business  ; 
that  they  held  the  drafts  of  Matthias  Kitchel  for  about 
$1250,  which  had  been  drawn  in  their  favor  upon  different 
mercantile  houses  at  the  South,  and  which  had  been 
protested  for  nonpayment ;  that  Joseph  C.  Righter  and 
the  defendant  dissolved  their  business  connections,  and 
in  their  arrangements  the  drafts  became  the  individual 
property  of  Joseph  C.  Righter ;  that  Joseph  C.  Righter, 
being  desirous  of  bringing  suits  at  law  to  collect  the 
amounts  due  on  the  drafts  against  the  drawer,  and  being 
in  embarrassed  circumstances,  and  fearful  that  the  collec- 
tion of  the  drafts  might  be  embarrassed  by  his  creditors 
if  he  should  bring  suit  in  his  own  name,  applied  to 
Stephen  W.  Righter  to  take  the  drafts,  and  institute  a 
suit  upon  them  in  his  name,  but  for  the  benefit  of  him, 
Joseph  C.  Righter  ;  that  Stephen  W.  Righter  did  accord- 
ingly commence  the  suit ;  that  when  the  said  suit  was 
about  to  be  tried,  the  defendant  alleged  that  he  was  in- 
terested in  the  said  drafts  and  in  the  event  of  the  suit, 
and  John  S.  Hager,  esq.,  who  was  attorney  in  the  suit, 
thereupon  advised  that  it  might  be  necessary  to  examine 
the  defendant  as  a  witness,  and  that  it  was  necessary  for 
that  purpose  to  release  him,  in  order  to  discharge  any  in- 
terest he  might  have  ;  that  the  said  attorney  then  tilled 
up  a  printed  form  of  general  release,  and  requested 
Stephen  W.  Righter  to  sign  it ;  that  he  objected,  on  the 
ground  of  the  release  being  too  broad  and  general  in  its 
terms ;  whereupon  the  defendant  replied,  that  it  was  no 


514       COUKT  OF  ERRORS  AND  APPEALS. 

Martin  v.  Righter. 

matter,  as  the  release  should  be  given  up  to  him  as  soon 
as  the  trial  was  over,  and  that  it  was  necessary  to  execute 
the  release  in  order  to  discharge  his  interest  in  the  suit 
(the  defendant  then  well  knowing  that  he  had  no  interest, 
and  that  the  release  was  unnecessary)  ;  that  the  attorney 
advised  that  it  was  right  and  safe  to  execute  the  release, 
and  that  no  harm  could  come  from  it ;  that  the  defendant 
was  examined  as  a  witness  in  the  cause,  and  that  the  only 
intention  of  the  parties  was  to  release  the  defendant's  in- 
terest in  that  suit ;  that  no  consideration  passed  for  the  re- 
lease, and  that  the  defendant  has  frequently  since  admitted 
his  indebtedness  on  the  bond  and  mortgage. 

What  was  there  in  this  transaction  to  justify  the  court  in 
declaring  that  the  defendant  procured  the  release  by  fraud  ? 
The  proposal  did  not  come  from  him  to  give  the  release. 
It  is  said  he  committed  a  fraud  in  pretending  he  was  in1 
terested  in  the  drafts,  when  he  was  not,  and  when  he  knew 
he  was  not.  If  this  were  so,  it  was  no  fraud.  Joseph  W. 
Righter,  who  declared  the  drafts  belonged  to  him,  was 
standing  by  to  contradict  the  assertion.  But  the  evidence 
in  the  cause  shows  that  there  was  a  dispute  as  to  the 
ownership  of  the  drafts,  an  I  the  weight  of  the  testimony  is, 
that  the  defendant  was  interested  in  the  drafts  to  the 
amount  of  one  half. 

But  it  is  said  there  is  another  fact :  he  promised  the  re- 
lease should  be  given  up  as  soon  as  the  trial  was  over ; 
that  there  was  no  consideration  given  for  the  release,  and 
the  only  object  of  it  was  to  make  the  defendant  a  compe- 
tent witness  in  the  suit.  But  all  this  is  at  variance  with 
the  instrument  itself ;  and  to  permit  the  complainants  to 
prove  it,  would  be  admitting  parol  testimony  to  contra- 
dict and  vary  the  plain  and  unambiguous  terms  of  a  sealed 
instrument.  If  the  object  was  not  to  release  the  defend- 
ant from  anything  except  from  such  liabilities  as  made 
him  incompetent  to  be  a  witness  in  the  suit,  why  was  not 
such  a  release  drawn  ?  There  is  no  pretence  that  the  de- 
fendant dictated  the  terms  of  the  release.  It  was  drawn 


MAKCH  TEEM,  1856.  515 

Martin  v.  Righter. 

by  the  attorney  of  the  other  party,  and  was  retained  for 
some  time,  and  then  delivered ;  there  can  be  no  pretence 
that  it  was  done  hastily  or  through  inadvertence. 

But  there  is  another  view  of  this  feature  of  the  case. 
This  release  was  offered  in  evidence,  and  was  received 
by  the  court  as  a  valid  release  between  the  parties.  Upon 
the  faith  of  it,  the  defendant  was  admitted  as  a  compe- 
tent witness,  and  was  permitted  to  give  evidence  in  the 
suit  at  law.  Stephen  "W.  Righter,  or  the  complainants, 
who  stand  in  his  place,  now  come  into  a  court  of  equity, 
and  allege  that  the  release  was  to  be  delivered  up  after  it 
had  effected  its  purpose  with  the  court ;  and  the  defend- 
ant not  fulfilling  his  promise,  this  court  is  called  upon  to 
declare  it  fraudulent  and  void.  Such  a  case  cannot  be 
favored  in  this  court.  The  agreement,  if  there  was  such 
a  one,  was  fraudulent.  It  was  imposed  upon  the  court  as 
a  valid  release,  when  the  parties  had  agreed  it  should  be 
considered  a  mere  matter  of  form,  and  be  cancelled. 

But  there  is  another  circumstance  connected  with  this 
part  of  the  case,  as  the  complainants  state  it  in  their  bill, 
very  unfavorable  to  a  party  seeking  redress  in  a  court  of 
equity.  It  is  stated,  as  a  favorable  circumstance  to  the 
complainants'  case,  that  it  is  admitted  by  all  parties  that 
Stephen  "W.  Righter  had  no  interest  in  the  suit  at  law.  It 
is  then  asked,  why,  then,  would  he  release  this  defendant 
of  a  debt  of  fifteen  hundred  dollars  well  secured  without 
deriving  any  advantage  to  himself  ?  The  answer  is,  he  did 
release  it,  and  there  is  his  release  under  his  hand  and  seal. 
But  the  misfortune  of  Stephen  W.  Righter  is,  that  while 
assuming  a  position  to  avail  himself  of  this  argument,  he 
is  obliged  to  admit  that  he  was  conducting  the  suit  for 
the  benefit  of  Joseph  C.  Righter,  and  doing  it  in  his  own 
name,  for  the  purpose  of  enabling  Joseph  C.  Righter  to 
protect  his  property  from  his  creditor?.  The  fraudulent 
position  which  he  occupied  forced  upon  him  the  necessity 
of  executing  the  relea.se.  AVhere  a  party  in  committing  a 


516          COURT  OF  ERRORS  AND  APPEALS. 

Martin  v.  Righter. 


fraud,  has  a  still  greater  one  practised  upon  himself,  he 
can  have  no  redress  against  it  in  a  court  of  equity. 

The  proof  does  not  sustain  the  allegation  of  fraud  on 
the  part  of  the  defendant  in  procuring  this  release.  It 
was  given  to  him  without  his  solicitation.  I  can  see  no 
fraud  in  his  setting  it  up  as  a  defence  against  a  recovery 
upon  this  bond  and  mortgage.  They  are  embraced  in  the 
legal  construction  of  the  instrument,  and  it  is  not  com- 
petent under  the  circumstances,  to  show  that  it  was  the 
intention  of  the  parties  that  it  should  be  limited  in  its 
legal  application. 

Second.  The  bill  prays  that  the  release  may  be  de- 
clared to  have  been  executed  by  mistake.  The  power  of 
the  court  to  correct  a  mistake  in  the  execution  of  a  writ- 
ten instrument,  was  well  considered  in  the  cases  of  Smith 
v.  AUen  and  others  (Saxton  46),  and  of  Hendrickson  et  al.  v. 
Ivins  (Saxton  568).  The  mistake  alleged  is  this :  that 
when  the  attorney  of  Stephen  "W.  Righter  had  prepared 
the  release,  he  objected  to  sign  it,  on  the  ground  that  it 
was  too  broad  and  general  in  its  terms,  as  covering  every- 
thing ;  whereupon  the  defendant  replied,  it  was  no  matter, 
as  the  release  would  be  given  up ;  and  then  Mr.  Hager, 
the  attorney,  advised  Stephen  W.  Righter  to  sign  it. 

It  is  manifest  that  the  mistake  was  not  in  Stephen  W. 
Righter's  signing  the  release  under  a  misapprehension  as 
to  its  comprehensiveness ;  for  when  he  made  this  objection, 
neither  the  defendant  or  the  attorney  questioned  the  cor- 
rectness of  his  judgment  as  to  the  character  of  the  instru- 
ment, lie  did  not  execute  the  release  under  a  miscon- 
ception or  mistake  as  to  its  contents  or  as  to  its  compre- 
hensiveness or  effect.  He  executed  it  relying  upon  the 
promise  of  the  defendant  that  he  would  return  it  to  him. 
In  that  respect,  the  result  has  proved  he  was  mistaken ; 
but  that  kind  of  mistake  this  court  cannot  remedy.  It  is 
an  obligation  of  honor,  which  the  parties  must  settle  be- 
tween themselves. 

Third.     The    complainants     insist    that  the    defendant 


MAECII  TEEM,  1856.  517 

Mai-tin  r.  Righter. 

should  not  be  permitted  to  set  up  the  release  as  against 
them,  because  they  were  induced  by  the  acts  and  conduct 
of  the  defendant  to  advance  their  money  upon  the  bond 
and  mortgage. 

The  complainants  are  the  assignees  of  the  bond  and 
mortgage.  They  are  1>ona  fide  assignees.  Do  they  stand 
in  any  better  situation,  in  respect  to  the  defence  set  up, 
than  the  obligee  himself  did  at  the  time  of  the  assign- 
ment? The  assignee  of  a  bond  takes  it  subject  to  all 
the  legal  objections  and  equities  which  exist  against 
it  in  the  hands  of  his  assignor.  If  at  the  time  of  the  as- 
signment this  release  was  a  legal  defence  as  against  the 
obligee,  it  is  a  legal  defence  against  the  complainant,  his 
assignees.  But  they  may  avoid  this  defence  in  equity 
by  showing  that  they  were  induced  to  take  the  assign- 
ment, and  advance  their  money  upon  it,  by  the  acts  and 
conduct  of  the  defendant,  which  make  him  guilty  of  a 
constructive  fraud,  or  by  such  omissions  or  gross  negli- 
gence as  imply  fraud.  If  the  complainants  had  made  ap- 
plication to  the  defendant  to  know  what  amount  was  due 
upon  the  bond  and  mortgage,  and  the  defendant  had  told 
them  the  amount  without  apprizing  them  of  the  exist- 
ence of  the  release,  or  if  the  defendant  had  stood  by  si- 
lently, and  seen  the  complainants  advance  their  money 
upon  the  assignment,  he  would  not,  in  a  court  of  equity, 
be  permitted  to  set  up  the  release  against  the  party  claim- 
ing under  such  assignment.  A  man  who  designedly  or 
knowingly  produces  a  false  impression  upon  another,  who 
is  thereby  drawn  into  some  act  or  contract  injurious  to 
his  own  rights  or  interests,  is  guilty  of  constructive  fraud, 
against  which  a  court  of  equity  will  afford  an  adequate 
relief.  This  is  a  familiar  principle  of  equity.  It  will  be 
found  supported  by  numerous  authorities  in  1  Story 8  E%. 
e/.,  §  384,  and  following  sections  and  notes  to  the  same. 

Let  us  see  whether  the  complainants  can  avail  them- 
selves of  this  principle.  It  is  said  tli«it  the  defendant 
treated  the  bond  and  mortgage  as  valid  and  subsisting 

VOL.  n.  2  x 


518      COURT  OF   ERRORS  AND  APPEALS. 

Martin  v.  Righter. 

obligations  binding  upon  him  after  the  execution  of  the 
release.  An  acknowledgment  of  the  amount  of  money  due 
upon  the  bond,  and  that  it  was  a  subsisting  debt,  would 
not,  either  in  a  court  of  equity  or  law,  prevent  the  defend- 
ant from  pleading  the  release  as  against  the  obligee.  Such 
an  acknowledgment  would  not  destroy  the  release.  To 
make  it  available  to  these  complainants,  they  must  show 
that  the  act  was  prejudicial  to  them,  and  was  made  under 
circumstances  to  induce  them,  upon,  the  faith  of  such 
acknowledgment,  to  part  with  their  money.  If  the 
acknowledgment  was  not  made  for  the  purpose,  or  under 
circumstances  calculated  to  mislead  the  complainants,  it 
could  not  be  construed  as  a  fraud  upon  them. 

The  only  acknowledgment  proved  to  have  been  made 
by  the  defendant  is  by  a  witness,  who  says,  that  some 
time  in  1848,  he  had  a  casual  conversation  with  the  de- 
fendant, and  asked  him  how  he  was  getting  along  with 
his  business.  "  He  said,  veiy  well ;  his  business  had  done 
well,  so  far  as  he  had  gone  with  it ;  that  his  debts  were 
mostly  paid,  with  the  exception  of  the  mortgage  that 
Stephen  held  upon  his  property  in  Rockaway."  There 
certainly  was  nothing  in  this  conversation  which  Stephen 
AV.  Righter  could  take  advantage  of  in  any  way.  It  was 
about  this  time  that  he  sent  the  bond  and  mortgage,  by 
Mr.  Chandler,  to  the  defendant  to  collect  the  interest  upon 
it,  when  the  defendant  produced  the  release,  and  claimed 
it  as  a  discharge  of  the  bond  and  mortgage.  But  how  did 
anything  said  by  the  defendant,  in  the  conversation  alluded 
to,  prejudice  the  complainants  ?  They  do  not  allege  that 
what  was  then  said  was  even  known  to  them  at  the  time  of 
the  assignment,  and  there  is  no  proof  that  it  was  ever  heard 
of  by  them  until  testified  to  by  the  witness.  There  can  be 
no  pretence  that  they  advanced  their  money  upon  the 
strength  of  that  conversation.  If  they  did,  that  circum- 
stance would  not  help  them,  for  they  ought  not  to  have 
relied  upon  it. 

There  is  only  one  other  fact  upon  which  the  complain 


MARCH  TERM,  1856.  519 

Martin  v.  Righter. 

ants  rely  to  show  a  constructive  fraud,  and  that  is  the  pay- 
ment of  interest  on  the  bond  on  the  20th  of  October,  1849. 
Of  what  took  place  at  the  time  of  this  payment,  and  of  the 
circumstances  under  which  it  was  made,  we  have  no  legal 
proof.  The  statements  of  the  bill,  as  to  the  particulars  of 
the  transaction,  are  denied  by  the  answer,  and  neither  the 
.statements  of  the  bill  or  answer,  as  to  the  particulars,  are 
sustained  by  proof.  The  evidence  of  the  attorney,  detail- 
ing the  negotiation  between  himself  and  Stephen  "W. 
Righter,  and  the  declarations  of  the  latter,  are  ruled  out 
as  incompetent  to  be  given  in  evidence.  We  have  the 
fact,  that  on  the  20th  of  October,  1849,  the  defendant  paid 
to  Stephen  "VV.  Righter  seventy-three  dollars  and  twenty- 
nine  cents  for  interest  money  due  on  the  bond ;  that  when 
the  payment  was  made  the  bond  was  not  there,  and  a 
loose  receipt  was  given  for  the  payment ;  that  no  money 
was  paid,  but  the  defendant  gave  his  due-bill  for  $12.86, 
payable  in  time,  and  the  balance,  making  up  the  amount 
of  $73.29,  was  settled  by  an  account  which  the  defendant 
had  against  Stephen  W.  Righter.  The  mere  fact  of  this 
payment  is  no  bar  or  estoppel  to  the  defendant's  pleading 
the  release  at  law,  or  setting  it  up  in  this  court  against 
the  obligor.  The  release  the  defendant  might  or  might 
not  set  up,  as  he  pleased.  It  was  a  legal  discharge  to  the 
whole  amount  due  ;  but  because  the  defendant  did  not 
choose  to  take  advantage  of  it  to  its  full  extent,  what  rea- 
son has  the  obligor  to  complain  ?  The  payment  was  for 
his  benefit,  and  did  not  or  could  not  prejudice  him  in  any 
manner.  A  sealed  instrument  could  not  be  defeated  by 
such  an  act.  If  it  is  said  the  payment  is  an  admission  of 
the  obligor  that  the  release  does  not  extend  to  the  bond, 
or  that  it  was  not  the  intention  of  the  parties  that  it  should 
extend  to  it,  the  answer  is,  the  release  speaks  for  itself, 
and  as  to  its  embracing  the  bond  there  is  no  question  ;  the 
instrument  must  be  construed  as  to  its  legal  effect,  and 
the  intention  of  the  parties  cannot  be  substituted.  Do  the 
complainants  stand  in  any  better  situation  than  their  as 


520         COUET  OF  EREOES  AND  APPEALS. 

Martin  v.  Righter. 

signer  ?  The  complainants  had  the  opportunity  of  making 
application  directly  to  the  defendant  to  know  whether  he 
had  any  defence,  legal  or  equitable,  against  the  bond.  If 
such  application  had  been  made,  and  the  defendant  had 
told  them  the  sum  of  $1500  was  due,  and  had  not  dis- 
closed their  release,  then  the  defendant  would  have  been 
estopped  from  setting  it  up  against  them.  •  This  is  quite 
as  far  as  any  of  the  cases  referred  to  go.  In  Damson  v. 
FranUin  (I  Barn.  &  Adol.  U2  ;  20  E.  C.  L.  253),  a  war- 
rant of  attorney  was  given  to  confess  judgment  for  a 
gaming  debt.  The  plaintiff,  Davison,  purchased  the  judg- 
ment ;  but  before  doing  so,  his  attorney  produced  the  bond 
to  the  defendant,  and  informed  him  it  had  been  offered 
for  sale,  and  asked  him  whether  he  admitted  it  to  be  a 
good  debt,  and  whether  it  was  given  for  a  good  and  valu- 
able consideration.  The  defendant  replied,  "  Yes,  this  is 
my  handwriting ;  I  owe  Mr.  Davison  the  money,  and  have 
no  objection  to  make  to  it ;  it  will  be  paid  when  it  is  due." 
In  Watson's  Executors  v.  McLaren  (19  Wend.  55  7),  the  ex- 
tent of  the  principle  established  was,  that  declaring  a  note 
to  be  good,  to  one  about  to  purchase  it,  or  standing  by  in 
silence  when  it  is  transferred  for  consideration,  is  an  es- 
toppel in pais  against  a  debtor.  In  Fosters.  Newland(^\. 
Wend.  94),  the  principle  settled  was,  that  where  a  debtor 
admits  to  a  third  person  an  existing  balance  due  from  him 
on  a  bond  or  other  chose  in  action,  and  upon  the  strength 
of  such  admission  such  person  takes  an  assignment  of 
the  bond  or  other  chose  in  action,  the  debtor,  in  a  suit 
subsequently  brought  for  the  recovery  of  such  balance, 
is  estopped  from  showing  a  claim  against  the  original  cre- 
ditor for  the  purpose  of  reducing  the  amount  of  the  re- 
covery, although  the  assignment  was  taken  for  a  precedent 
debt. 

Now  in  this  case  no  application  was  made  by  the  com- 
plainants, or  on  their  behalf  to  the  defendant,  to  ascertain 
the  validity  of  the  bond,  or  what  was  due  upon  it.  He 
was  not  apprized  of  their  intention  to  purchase  the  bond. 


MAECII  TERM,  1856.  521 

Mai-tin  r.  Righter. 

He  was  guilty  of  no  act  of  commission  or  omission  having 
any  reference  to  the  complainants'  purchase.  The  pay- 
ment of  the  interest  was  a  private  dealing  between  the 
debtor  and  creditor  without  any  reference  to  third  per- 
sons, and  affecting  no  one's  interest  but  their  own.  The 
complainants  may  have  been  induced  by  it  to  run  the  risk 
of  purchasing  the  bond,  but  they  cannot  say  that  they 
have  been  defrauded  by  the  .defendant's  conduct.  The 
oond  in  the  hands  of  a  third  person  was  prima  facie  evi- 
dence that  the  amount  it  called  for  was  due  and  owing, 
and  that  it  was  a  valid  bond.  The  payment  of  interest 
upon  it  was  prima,  facie  evidence  that  the  balance  was  due. 
The  complainants  chose  to  take  the  bond  upon  the  repre- 
sentations of  the  obligee,  and  not  upon  the  faith  of  any- 
thing that  was  done  by  the  obligor.  The  truth  is  the  com- 
plainants did  not  take  the  bond  relying  upon  anything 
that  was  said  or  done  by  the  obligor.  How  did  they  know 
that  the  interest  was  paid  on  the  20th  of  October,  1849  ? 
They  derived  their  information  from  the  obligee  alone. 
He  brought  to  their  attorney,  written  on  a  paper  about 
two  inches  long  and  one  inch  wide,  the  following  memo- 
randum in  the  handwriting  of  the  defendant :  "  $73.79, 
Rec'd  Oct.  20,  1849."  They  took  his  word  for  it  that  this 
was  for  interest  on  the  bond.  In  looking  at  the  conduct 
of  the  defendant,  there  can  be  no  doubt  that  if  application 
had  been  made  directly  to  him,  he  would  have  denied  his 
liability  upon  the  bond,  and  insisted  upon  the  release.  No 
one  can  look  at  the  case — the  pleadings,  the  evidence,  and 
the  circumstances,  and  not  be  satisfied  that  the  procuring 
of  the  payment  of  the  interest  and  of  the  memorandum 
referred  to  was  a  contrivance  of  Stephen  "W.  Kighter  to  ob- 
tain something  frqin  the  defendant  which  would  estop 
him  from  pleading  the  release  against  an  assignee  of  the 
bond. 

This  case  is  an  extremely  hard  one  for  Stephen  "W. 
Righter.  It  is  evident  that  he  has  never  received  payment 
of  the  money  intended  to  be  secured  by  the  bond  and 

2x* 


522   COURT  OF  ERRORS  AND  APPEALS. 

Martin  u.  Righter. 

mortgage.  But  here  is  a  solemn  instrument,  executed 
under  his  seal,  by  which  he  releases  the  obligee  from  the 
payment  of  that  bond.  This  court  has  no  right  to  set  it 
aside  .unless  for  fraud,  or  to  control  its  legal  effect  unless 
some  mistake  can  be  shown.  I  can  make  no  new  principle 
of  law  or  equity  to  relieve  the  particular  hardship  of  any 
case. 

The  appeal  was  argued  by 
Whelpley  and  Dodd,  for  appellants. 
Chandler  and  Zabriskie,  for  respondents. 

The  opinion  of  the  court  was  delivered  by 

POTTS,  J.  The  object  of  the  bill  of  complaint  in  this 
case  was  to  have  a  certain  release,  executed  by  Stephen 
Righter  to  Michael  Righter,  on  the  19th  May,  1847,  de- 
clared fraudulent  and  void,  or  to  have  it  reformed  so  far 
as  respects  the  bond  and  mortgage  held  by  the  complain- 
ants ;  and  for  an  injunction,  &c. 

This  bond  and  mortgage  had  been  given  by  Michael  to 
Stephen,  in  1842,  and  Stephen  assigned  to  the  complain- 
ants, for  full  consideration,  in  1849,  there  being  then  $1500 
due  on  the  bond. 

The  release  in  question  was  a  general  release,  and  Mi- 
chael sets  it  up  as  a  bar  to  a  recovery  upon  the  bond  and 
mortgage. 

The  complainants,  in  the  first  place,  allege  fraud  in  the 
inception  of  this  release.  Parol  evidence  is  admissible  for 
the  purpose  of  establishing  this  allegation  ;  and  by  this 
means  the  facts  and  circumstances  connected  with  the  exe- 
cution of  this  paper  were  brought  before  the  court. 

They  were  briefly  these :  Joseph  C.  Righter  was  the 
holder  of  certain  drafts,  drawn  by  Kitchel  on  parties  at 
the  South,  and  endorsed  by  Michael  Righter.  They  had  been 
protested,  and  were  of  doubtful  value.  He  put  these  drafts 


MARCH  TEEM,  1856.  523 

Martin  ix  Righter. 

into  the  hands  of  Stephen  Righter,  to  be  collected  for  his, 
Joseph's,  use ;  and  Stephen  brought  a  suit  upon  them,  in 
his  own  name,  against  Kitchel,  the  drawer. 

Michael  Righter  was  deemed  to  be  an  important  witness 
for  Stephen  in  that  suit ;  and  about  the  time  of  the  trial, 
it  seems  to  have  been  supposed  that,  to  make  him  com- 
petent as  a  witness,  it  was  necessary  that  Stephen  should 
release  him.  The  attorney  who  had  charge  of  the  suit 
filled  up  a  printed  form  of  a  general  release  for  Stephen 
to  execute  ;  and  after  some  objection,  that  it  was  too  broad, 
which  was  obviated  by  the  assurance  of  the  attorney  that 
he  might  safely  sign  it,  he  put  his  name  to  it. 

It  clearly  appears  that  the  object  of  executing  this  release 
was  to  make  Michael  Righter  a  competent  witness  in  the  case 
of  Righter  v.  Kitchel.  No  other  purpose  was  expressed, 
or  even  hinted  at,  by  anybody,  either  before  or  at  the 
time  of  the 'execution.  Michael  never  suggested  any  other 
use  to  be  made  of  it.  For  that  single  purpose  it  was  pre- 
pared by  the  attorney.  For  that  purpose,  alone,  Stephen 
executed  it.  Michael  undoubtedly  knew  wheruhe  received  it 
that  that  was  the  sole  purpose  for  which  Stephen  executed 
and  delivered  it  to  him.  He  was  present  with  Stephen  at 
its  execution,  and  this  purpose  was,  beyond  a  question, 
clearly  understood.  Not  only  the  pleadings  and  the  evi- 
dence, but  the  circumstances  of  the  case  show  this.  In 
the  first  place,  Stephen  had  no  personal  interest  whatever 
in  the  suit  against  Kitchel.  Ho  was  merely  the  nominal 
plaintiff.  He  held  the  drafts  merely  for  collection.  He 
had  no  earthly  motive  to  execute  such  a  paper  beyond  a 
desire  to  befriend  the  plaintiff  in  the  suit.  And,  in  the 
second  place,  the  release  was  a  boon  bestowed  on  Michael  / 
he  was  the  party  who  received  a  favor,  if  anybody.  It  re- 
leased him  from  his  liability  as  endorser  on  the  drafts.  It 
was  valuable  to  him  in  that  aspect  of  the  case.  Under 
these  circumstances,  it  is  impossible  to  conceive  why  Ste- 
phen should  have  intended  to  make  a  great  pecuniary  sac- 
rifice, to  give  up  a  bond  and  mortgage  for  a  large  amount 


524      COURT  OF  ERRORS  AND  APPEALS. 

Martin  v.  Righter. 

for  the  purpose  of  inducing  Michael  to  accept  this  instru- 
ment, or  why  Michael  should  have  expected  to  obtain  a 
large  pecuniary  compensation  for  consenting  to  be  released 
from  heavy  legal  liabilities. 

Michael  Righter  is  probably  the  first  person  who  ever 
gravely  pretended  in  a  court  of  justice  that  he  had  been 
paid  $1500,  or  its  equivalent,  for  consenting  to  be  released 
from  his  endorsements  on  commercial  paper. 

A  strange  idea  seems  to  have  got  into  this  case,  that 
this  release  had  something  to  do  with  an  interest  Michael 
claims  that  he  had  in  these  drafts.  Stephen's  release  had 
nothing  to  do  with  that.  To  effect  that  interest,  if  he  had 
any,  the  release  should  have  been  executed  by  Michael  to 
Stephen.  In  point  of  fact,  Stephen's  release  was  unneces- 
sary for  the  purpose  of  Michael's  competency  as  a  witness. 
It  was  his  interest  in  the  drafts,  if  he  had  any,  that  made 
him  incompetent.  And  upon  his  own  case,  as  he  states  it, 
he  got  a  release  from  his  liability  as  endorser  on  the  drafts, 
got  $1500  to  boot  by  covering  the  bond  and  mortgage 
with  the  same  release,  and  then  went  into  court  and  testi- 
fied as  a  disinterested  witness  in  a  suit  brought  to  recover 
the  amount  of  the  drafts  of  which  he  was  the  owner  of  one 
moiety  at  the  time,  and  which  interest,  as  far  as  appears,  he 
has  never  in  any  way  surrendered  or  compromised. 

The  fact  is  established,  there  can  be  no  doubt  about  it, 
that  both  Stephen  and  Michael,  at  the  time  of  the  execution 
of  this  release,  understood  perfectly  that  the  object,  and  the 
sole  object  of  it,  was  to  make  him,  Michael,  competent  as 
a  witness  ;  that  no  other  purpose  was  intended  or  dreamed 
of  by  Stephen  ;  and  Michael  knew  very  well  that  if  Ste- 
phen had  had  the  most  distant  intimation  that  it  was  to  be 
used  to  bar  a  recovery  of  the  bond  and  mortgage,  it  would 
never  have  been  given. 

Michael  says,  in  his  answer,  it  was  "  a  general  release 
from  said  Stephen  "W.  Righter  to  myself,  of  such  force  and 
effect  as  it  purports  to  be,  and  I  made  use  of  that  opportu- 
nity to  insist  upon  and  obtain  it" 


MARCH  TERM,  1856.  525 

Martin  v.  Righter. 

Then  he  insisted  upon  it ;  he  was  instrumental  in  ob- 
taining it.  He  insisted  upon,  he  was  instrumental  in  ob- 
taining an  instrument  without  any  consideration  in  the 
world,  which  operated  as  a  bar  to  the  recovery  of  a  bond 
of  some  $1500,  an  honest  debt  due  from  him  to  his  neigh- 
bor, without  that  neighbor  having  the.  least  idea  that  that 
was  to  bo  the  purpose  of  it— he  knowing  that  that  neigh 
bor  was  to  be  deceived  and  cheated  by  its  operation. 

What  is  fraud  but  the  obtaining  an  advantage  over  an- 
other by  deception,  trick,  or  artifice  ?  To  say  that  he  stood 
by,  was  silent,  and  said  nothing ;  that  it  was  the  negli- 
gence of  the  attorney  or  the  lack  of  caution  in  Stephen 
that  induced  the  execution  of  such  an  instrument,  is  to 
stick  in  the  bark  of  the  transaction.  He  wlio  intended  at 
the  time  to  tarn  the  transaction  from  an  innocent  to  a  frau- 
dulent purpose  is  a  fraud  doer.  There  was  fraud  in  obtaining 
such  a  release  for  such  a  purpose. 

Upon  this  ground,  in  my  judgment,  the  decree  below 
should  be  reversed. 

I  am  of  opinion  there  is  another  ground  upon  which 
the  complainants  below  are  entitled  to  relief  upon  the 
strength  of  the  evidence  in  this  case.  Michael  Righter 
was  indirectly  instrumental  in  inducing  the  complainants 
to  take  an  assignment  of  the  bond  and  mortgage.  He 
went  to  Stephen  before  the  assignment,  on  the  20th  of 
October,  1849,  and  paid,  or  settled  with  him  for  $73.79 
on  account  of  interest  due  on  this  very  bond,  wrote  a  re- 
ceipt with  his  own  hand  for  Stephen  to  sign  for  the.- 
amount,  expressing  that  it  was  for  interest  due  on  this 
very  bond  held  by  Stephen  against  him,  and  gave  to  Ste- 
phen a  paper  on  which  he  wrote  "  $73.79,  Rcc'd  Oct.  20, 
1849,"  in  order  that  he  might  endorse  it  on  the  bond  ;  he 
said  nothing  of  the  release  ;  and  though  he  did  not  see 
or  communicate  with  the  complainants  or  their  attorney 
himself,  yet  lie,  by  this  means,  authorized  Stephen  truth- 
fully to  represent  to  the  complainants'  counsel  that  that 
amount  of  interest  had  been  paid  that  day  on  the  bond 


526   COUET  OF  EEEOES  AND  APPEALS. 

Martin  v.  Righter. 

by  Michael  himself,  and  that  he  had  thus  virtually  ac- 
knowledged his  indebtedness  for  the  balance  of  principal 
and  interest  remaining  due.  If  this  transaction  had  taken 
place  in  the  presence  of  the  complainants  of  thoir  attor- 
ney, it  would  have  estopped  Michael  from  setting  up  the 
release  as  against  the  assignees  of  the  bond  and  mortgage  ; 
and  the  distinction  between  an  act  done  in  the  presence  of 
a  party,  by  which  he  is  induced  to  become  a  purchaser, 
and  the  same  act  done  in  the  presence  of  a  third  party, 
and  which,  being  truthfully  represented  to  another,  induces 
him,  upon  that  information,  to  purchase,  is  a  distinction 
without  a  difference.  An  "  equitable  estoppel,"  says  Mr. 
Justice  Carpenter,  in  Den.  v.  Baldwin,  1  Zab.  403,  "  rests 
upon  the  principle,  that  when  any  one  has  done  an  act  or 
made  a  statement  which  it  would  be  fraud  on  his  part  to 
controvert  or  impair,  and  such  act  or  statement  has  so  in- 
fluenced any  one  that  it  has  been  acted  upon,  the  party 
making  it  will  be  estopped  and  cut  off  from  the  power  of 
retraction.  It  must  appear,  first,  that  he  has  done  some 
act  or  made  some  admission  inconsistent  with  his  claim ; 
secondly,  that  the  other  party  has  acted  on  such  conduct 
or  admission ;  and  thirdly,  that  such  party  will  be  injured 
by  allowing  such  conduct  or  admission  to  be  withdrawn." 
The  decree  of  the  court  below  is  reversed. 

The  following  dissenting  opinion  was  read  by 
ELMEK,  J.  I  am  compelled  to  dissent  from  the  opinion 
of  the  majority  of  the  court.  That  the  release  which  is 
sought  to  be  avoided  is  sufficient  in  law  to  discharge  the 
judgment  and  the  collateral  bond  and  mortgage  held, 
when  it  was  executed,  by  Stephen  "W.  Eighter,  the  re- 
'easor,  is  not  disputed.  That  Stephen  must  have  under- 
stood that  such  would  be  its  legal  effect,  appears  to  me 
unquestionable.  It  is  expressly  stated  in  the  bill  that  he 
objected  to  it  at  the  time  as  covering  everything  ;  but  was 
answered,  that  it  was  no  matter,  as  it  would  be  given  up 
to  him  as  soon  as  the  trial  was  over.  There  is,  therefore, 


MAECH  TERM,  1856.  527 

Martin  v.  Righter. 

cot  the  slightest  ground  for  the  charge  that  there  was  a 
ir-istake  in  point  of  fact.  If  it  was  true,  which  by  no  means 
appears,  that  he  was  mistaken  as  to  its  legal  operation, 
and  was  ignorant  that  it  discharged  his  claim  on  the  bond 
and  mortgage,  he  is  entitled  to  no  relief  on  that  ground, 
it  being  his  duty  to  inform  himself,  as  he  had  ample  oppor- 
tunity to  do.  If,  as  the  bill  states  and  the  facts  of 
the  case  tend  to  show,  he  relied  on  the  expectation  that  it 
would  be  given  up  as  soon  as  the  trial  was  over,  he 
jj  precluded  by  his  own  showing  from  objecting  to  the 
Consequences  of  his  own  folly.  It  was  not  and  could  not 
be  denied,  that  if  the  release  was  intentionally  executed  in 
so  broad  a  form  as  to  discharge  the  mortgage  debt,  so  as  to 
enable  Michael  Righter  to  become  a  witness,  with  the 
understanding  that  it  should  be  afterwards  surrendered, 
this  was  a  fraud  upon  the  law,  and  the  court  will  not  lend 
its  aid  to  relieve  the  party  from  the  consequences  of  hia 
own  wrong  doing. 

But  the  ground  most  relied  on  for  setting  aside  the  re- 
lease is,  that  it  was  procured  by  the  fraudulent  contrivance 
or  concealment  of  Michael  Righter,  the  respondent.  If  this 
charge  is  established,  there  can  be  no  doubt  of  the  power 
and  duty  of  a  court  of  equity  to  interfere,  and  prevent  it 
from  discharging  an  honest  debt.  In  order  to  ascertain  in 
what  the  fraud  is  alleged  to  have  consisted,  we  must  look  to 
the  bill  of  complaint,  for  the  appellants  must  stand  or  fall 
by  the  case  they  have  themselves  presented.  Much  of  the 
argument  of  their  counsel  went  upon  grounds  not  only  not 
presented,  but  upon  such  as  are  inconsistent  with  the  case 
made. 

The  allegations  of  the  bill  are,  not  that  Michael  Righter 
was  or  claimed  to  be  interested  in  the  suit  brought  against 
Matthias  Kitchel,  in  the  name  of  Stephen  W.  Righter,  as 
the  endorser  of  the  drafts,  and  not  that  the  object  of  the 
release  was  to  discharge  that  interest ;  but  that  he  alleged 
the  drafts  were  given  for  the  payment  of  a  debt,  half  of 
which  was  due  to  him,  and  that  he  was  still  entitled  to 


528      COUET  OF  EEEOES  AND  APPEALS. 

Martin  v.  Righter. 

half  of  whatever  should  be  collected  on  them ;  and  that 
Stephen  TV.  Eighter  was  advised  by  his  attorney,  that  it 
might  become  necessary  upon  the  trial  to  call  and  examine 
Michael  Eighter,  as  a  witness ;  and  that,  as  his  testimony 
might  be  objected  to  on  the  ground  of  his  interest  in  the 
event  of  the  suit,  it  was  necessary  and  proper  to  execute  a 
release  to  him.  It  is  also  averred  that  when  the  release  was 
filled  up,  Stephen  objected  to  it,  as  being  too  broad  and 
general  in  its  terms,  as  covering  everything ;  whereupon 
Michael  replied,  that  it  was  no  matter,  as  the  release  should 
be  given  up  to  Stephen  as  soon  as  the  trial  was  over.  Also, 
that  Michael  Eighter  well  knew  he  had  no  interest  in  the 
suit,  and  that  the  attorney  advised  Stephen  it  was  right 
and  safe  for  him  to  sign  the  release,  and  thereupon,  and  in 
consequence  of  such  promise  as  aforesaid,  (that  is  to  give  it 
up)  he  executed  it,  and  it  was  delivered  to  Michael  Eighter, 
who  was  swDrn  and  examined  as  a  witness  in  the  cause. 
The  bill  also  avers  that  Stephen  TV.  Eighter  never  re- 
ceived any  consideration  for  the  release,  not  even  the 
nominal  sum  of  one  dollar,  mentioned  therein,  and  that  it 
was  never  his  intention  to  release  the  judgment,  and  that 
Michael  Eighter  never  asked  him  to  do  so,  or  intimated  to 
him,  in  any  way,  that  he  wished  him  to  execute  the  said  re- 
lease for  that  purpose. 

In  response  to  these  allegations,  the  answer  of  Michael 
Eighter  states,  that  he  was  entitled  to  one  half  of  what- 
ever should  be  recovered  on  the  drafts,  and  states  how 
his  interest  arose.  It  states  that,  having  this  interest,  his 
intention  was  to  appropriate  the  same  towards  the  pay- 
ment of  his  indebtedness  to  Stephen,  and  that  he  so  in- 
formed him ;  that  when  he  was  informed  the  drafts  were 
in  the  hands  of  Stephen,  and  it  was  intended  to  sue 
Kitchel  on  them,  he  expressed  his  disapprobation  to  Stephen, 
and  the  suit  was  brought  without  his  approbation  or 
consent ;  that  the  suits  remained  pending  for  about  two 
years :  and  being  asked  by  John  S.  Hager,  the  attorney 
for  the  plaintiff,  what  was  his  interest  in  the  drafts,  he  in- 


MARCH  TEEM,  1856.  529 

Martin  v.  Righter. 

formed  him ;  and  that  he  would  not  be  sworn  on  said  trial 
as  a  witness  until  he  had  something  to  show  for  said  drafts, 
and  an  equivalent  for  his  interest  therein  ;  and  the  attor- 
ney told  him  it  would  be  necessary  he  and  Stephen  should 
come  down  to  his  office  before  said  trial,  and  make  an  ar- 
rangement of  those  matters ;  that  within  a  few  days  Ste- 
phen came  to  him,  and  desired  him  to  go  to  Morristown 
upon  a  day  he  fixed ;  that  he  did  go  there  on  that  day, 
and  at  the  office  of  the  attorney  met  Stephen,  and  in  his 
presence  told  the  attorney  the  circumstances  relating  to 
the  drafts,  and  expressed  his  dissatisfaction  with  the  suit 
against  Kitchel,  and  fear  that  the  amount  thereof  would 
be  lost  in  that  way,  and  declared  that  he  would  not  con- 
sent to  be  sworn  upon  said  trial,  or  have  anything  to  do 
with  said  suit,  unless  his  said  interest  in  said  drafts  was 
divested,  and  the  same  accounted  for  to  and  settled  with 
him  by  the  said  Stephen,  and  that  the  one  equal  half 
part  of  said  drafts  was  nearly  equal  to  the  amount  then 
owed  by  him  to  said  Stephen,  and  that  the  attorney  told 
Stephen  it  would,  according  to  the  agreement  and  the 
circumstances  there  stated,  be  proper  and  necessary  for 
him  to  execute  a  release,  and  thereupon  the  attorney  filled 
up  a  printed  release,  and  the  same  was  executed  by  the 
said  Stephen ;  that  it  was  delivered  and  put  into  his 
pocket,  and  that  in  a  few  minutes  afterwards,  at  the  re- 
quest of  the  attorney,  he  handed  it  back  to  him,  to  be  re- 
turned in  court,  which  was  afterwards  done.  He  denies 
that  he  ever  promised  to  give  it  up  as  soon  as  the  trial 
was  over. 

An  attempt  was  made  to  disprove  the  answer,  but  it 
entirely  failed.  The  weight  of  the  evidence  is,  that  Mi- 
chael Righter  was  in  justice  entitled  to  one  half  of  the 
drafts.  It  is  not  stated  in  the  bill  or  answer,  nor  does  it 
distinctly  appear  by  the  evidence,  what  was  said  by  Mi- 
chael Righter  when  he  was  sworn  as  a  witness  and  pro- 
duced the  release  in  regard  to  his  interest  in  the  drafts. 
The  only  possible  mode  in  which  the  release  to  him  by 

VOL.  IL  2  Y 


530      COUET  OF  ERRORS  AND  APPEALS. 

Martin  v.  Righter. 

Stephen  could  operate  to  discharge  his  interest  in  the 
event  of  the  suit,  was  by  his  receiving  it  as  an  equivalent 
for  that  interest.  Having  done  this,  and  being  actually 
sworn,  he  was  precluded  from  setting  up  that  interest  af- 
terwards, whether  he  was  in  fact  questioned  as  to  his  in- 
terest or  not.  Unless  the  release  is  allowed  to  operate  in 
discharge  of  Stephen's  judgment  against  him,  the  result 
would  be  that  he  was  entrapped  into  an  act  which  cut 
him  off  from  any  right  to  what  might  be  recovered  of 
Kitchel,  or  of  the  other  parties  to  the  drafts,  without  any 
equivalent  whatever.  It  is  not  necessary,  however,  to  the 
Ajalidity  of  this  release  that  a  consideration  should  be 
shown.  If  it  clearly  appeared  that  there  was  none,  that 
would  no  doubt  be  a  strong  reason  for  inferring  a  mistake 
or  fraud.  But  all  the  circumstances  combine  to  show  that 
the  very  consideration  the  bill  states  was  pretended  and 
was  false,  in  reality  existed,  and  that  Stephen  "W.  Righter, 
with  full  knowledge  of  the  facts,  or  at  least  with  ample 
opportunity  to  ascertain  the  facts  and  the  law,  and  acting 
under  the  advice  of  his  counsel,  thought  it  a  sufficient 
reason  for  signing  and  delivering  a  general  release  of  all 
his  claims  against  Michael,  that  Michael  should  consent 
to  be  a  witness  for  him,  and,  if  needful,  declare  himself 
to  have  no  interest  in  the  suit.  Such-  a  consideration  is 
perfectly  valid  if  the  parties  acted  in  good  faith,  and  there 
is  no  evidence  that  Michael  did  not.  It  does  not  appear 
that  he  instigated  the  suit,  or  that  he  volunteered  to  be  a 
witness.  The  contrary  is  distinctly  averred,  and  there  is 
nothing  to  disprove  the  answer  in  these  particulars. 

That  Michael  Righter  was  afterwards  willing  to  have  a 
settlement  of  what  his  proper  share  of  the  money  due  on 
the.  drafts  was,  and  pay  Stephen  the  difference,  the  evi- 
dence shows,  and  he  does  not  deny.  But  it  is  not  pre- 
tended that  this  is  a  sufficient  ground  for  interfering  with 
the  legal  effect  of  the  release.  It  is  not  alleged  that  there 
was  any  miscalculation  or  misapprehension  as  to  the  real 
amount  due  on  the  judgment.  That  it  was  highly  impru- 


MAECH  TEEM,  1856.  531 

Martin  v.  Righter. 

dent  in  Stephen  to  execute  such  a  release,  now  that  the 
suit  against  Kitchel  has  failed,  is  very  obvious.  But 
courts  of  equity  cannot  relieve  parties  irom  the  unexpected 
consequences  of  their  voluntary  acts,  unless  it  is  made  very 
satisfactorily  to  appear  that  they  were  the  victims  of  a  mis- 
take they  are  not  themselves  accountable  for,  or  of  fraud 
on  the  part  of  those  who  claim  against  them.  I  am  there- 
fore of  opinion  that  the  release  stands  wholly  unimpeached 
and  in  full  force. 

The  appellants  however  insist,  that  being  assignees  for 
a  valuable  consideration  without  notice  of  the  release,  and 
having  been  induced  to  take  the  assignment  by  the  acts 
and  admissions  of  Michael  Eighter,  he  cannot  in  good 
faith  set  up  the  release,  as  against  them,  whatever  may  be 
its  effect  as  between  him  and  Stephen  "VV.  Eighter.  An 
estoppel  in  pais  is  stated  by  Judge  Carpenter,  in  the  case 
of  Den  v.  Baldwin,  1  Zdb,  403,  to  be  as  follows :  "  This 
equitable  estoppel  rests  upon  the  principal,  that  when 
any  one  has  done  an  act  or  made  a  statement  which  it 
would  be  fraud  on  his  part  to  controvert  or  impair,  and 
such  act  or  statement  has  so  influenced  any  one  that  it 
lias  been  acted  upon,  the  party  making  it  will  be  estopped 
and  cut  off  from  the  power  of  retraction.  It  must  appear, 
first,  that  he  has  done  some  act  or  made  some  admission 
inconsistent  with  his  claim ;  secondly,  that  the  other  party 
has  acted  upon  such  conduct  or  admission;  and  thirdly, 
that  such  party  will  be  injured  by  allowing  such  conduct 
or  admission  to  be  withdrawn.  It  is  intended  that  in  good 
conscience  and  honest  dealing  he  ought  not  to  be  per- 
mitted to  gainsay  them."  This  statement  of  the  doctrine 
may  be  accepted  as  correct;  but  it  does  not  profess  to 
contain  all  the  explanations  of  which  it  is  susceptible.  In 
most  cases,  it  will  be  important  to  inquire  how  or  to  whom 
the  acts  or  admissions  were  made.  The  object  is  to  pre- 
vent fraud.  Unless,  therefore,  the  acts  or  admissions  were 
so  made  as  to  show  a  design  to  produce  a  false  impres- 
t-ion, or  were  of  such  a  kind  that  such  would  bu  their 


532      COUET  OF  ERRORS  AND  APPEALS. 

Martin  v.  Righter. 

natural  result,  there  would  be  no  fraud  to  prevent.  No 
case  was  produced,  nor  do  I  suppose  one  can  be  found, 
that  goes  farther  than  this.  Where  it  i&  said  the  admis- 
sions must  be  acted  on,  it  is  meant,  as  the  authorities  relied 
on  show,  that  they  induced  the  other  party  to  do  what 
otherwise  he  would  not  have  done. 

It  is  to  be  noticed,  in  the  first  place,  that  the  appellants 
are  themselves  chargeable  with  great  negligence  in  not 
applying  themselves,  or  by  their  agent,  to  Michael  Righter, 
and  thus  ascertaining  whether  he-  acknowledged  the  debt. 
Judgments  and  bonds  and  mortgages  are  always  taken  by 
an  assignee,  as  they  were  bound  to  know,  and  as  their 
counsel  did  know,  subject  to  whatever  defence  the  maker 
had  as  against  the  assignor.  In  this  case  they  were  about 
to  accept  the  assignment  of  a  judgment  and  collateral 
bond  and  mortgage  payable  on  demand  and  more  than 
seven  years  old.  Had  their  agent  applied  to  Michael,  and 
he  had  stated  to  him  that  he  held  the  release,  and  claimed 
that  it  discharged  the  debt,  but  nevertheless,  inasmuch  as 
the  amount  of  his  interest  in  the  drafts  was  less  than  the 
amount  due  on  the  judgment,  or  for  any  other  reason,  he 
was  willing  to  pay,  and  did  pay  the  interest  appearing  to 
be  due,  to  take  a  receipt  for  it  as  so  much  due,  and  allow 
such  payment  to  be  endorsed  on  the  bond,  it  cannot  be 
pretended  the  assignees  would  have  stood  in  any  better 
situation  than  Stephen  did.  Instead  of  applying  directly 
to  Michael,  it  appears  the  appellants  thought  proper  to 
act  upon  the  faith  of  the  statements  made  by  Stephen, 
and  it  is  urged,  that  to  the  extent  that  Stephen's  state- 
ments were  true  they  had  a  right  to  do  so.  But  did  Ste- 
phen tell  them  the  whole  truth  ?  If  he  did,  he  told  them 
that  he  had  previously  placed  the  bond  and  mortgage  in 
the  hands  of  an  attorney  to  collect  the  interest ;  that  the 
attorney  applied  to  Michael  accordingly,  and  he  produced 
the  release  as  a  complete  discharge,  and  refused  to  pay, 
and  thereupon  the  attorney  handed  them  back  to  Stephen, 
and  informed  liim  of  what  had  taken  place.  By  making 


MARCH  TEEM,  1856.  533 

Martin  v.  Righter. 

Stephen  their  agent,  they  became  chargeable  with  all  the 
knowledge  he  had. 

Had  the  appellants  gone  to  Michael,  and  informed  him 
that  they  proposed  to  take  the  assignment,  he  would  have 
been  bound  to  disclose  his  real  position.  But  he  was  not 
bound  to  inform  Stephen  of  what  he  already  knew,  and 
cannot  be  charged  with  doing  an  act  inconsistent  with  his 
claim  because  he  said  nothing  then  about  the  release. 
Unless  the  admission  made  to  Stephen  would  enable  him 
to  enforce  the  judgment,  it  could  place  his  assignees  in 
no  better  position.  The  receipt  drawn  up  by  Michael  and 
signed  by  Stephen  was  retained  by  Michael,  and  all  that 
Stephen  had  to  show  to  the  counsel  of  the  appellants  was 
the  memorandum  "  $73.79,  Eec'd  Oct.  20,  1849,"  which 
of  itself  indicated  nothing,  and  was  not  an  act  on  which 
the  assignees  had  any  right  to  rely  or  upon  which  they 
did  rely.  They  did  not  take  the  securities  upon  the  faith 
of  this  paper,  but  upon  the  faith  of  Stephen's  representa- 
tions, which  were  only  a  part  of  the  truth.  There  was, 
in  my  opinion,  no  act  or  admission  made  by  Michael  in- 
consistent with  his  claim  to  hold  on  to  the  release,  and 
his  willingness  to  settle  with  Stephen  the  difference  be- 
tween his  interest  in  the  drafts  and  the  amount  due  on  the 
judgment. 

Equity,  it  was  insisted,  carries  this  species  of  estoppel 
further  than  courts  of  law,  and  we  were  referred  to  several 
cases  contained  in  Batten  on  Specif.  Per.  88.*  The  author 
states  the  principle  to  be  deduced  from  them  as  follows  : 
"  When  a  person  has  tacitly  encouraged  the  act  being 
done,  or  has  consented  to  it,  he  shall  not  exercise  his  legal 
right  in  opposition  to  that  consent."  That  Michael  Righter 
did  not  consent  to  an  assignment  lie  never  heard  of  is 
clear.  Did  he  tacitly  encourage  it  ?  This,  in  the  nature 
of  things  and  according  to  the  cases,  he  could  only  do  by 
keeping  back  something  he  was  bound  to  communicate. 

*7  Law  Lib.,  69  Rep. 
2Y* 


534:   COURT  OF  ERRORS  AND  APPEALS. 

Martin  u  Righter. 

He  did  not  do  this,  for  Stephen  W.  Righter,  with  whom 
alone  he  had  intercourse,  knew  all  about  the  release.  The 
only  act,  then,  that  he  can  be  charged  with  doing  is  the 
putting  on  paper  the  figures  indicating  the  amount  to  be 
credited,  which  would  not  of  itself  induce  any  man  of  or- 
dinary prudence  to  rely  on  the  securities,  and. which  could 
not  of  itself  have  influenced  the  appellants  to  do  so. 

But  besides  these  considerations,  it  appears  that  the  ap- 
pellants were  careful  to  take  a  covenant  from  Stephen  "W. 
Righter,  that  he  would  guarantee  the  payment  of  the 
money,  and  pay  all  the  costs  of  attempting  to  recover  it 
in  case  of  failure.  It  is  not  alleged  in  the  bill,  nor  does 
it  appear  in  the  proofs,  that  Stephen  is  not  perfectly  able 
to  fulfil  these  covenants.  If  he  is,  the  appellants  will  not 
be  injured  by  the  release,  and  thus  an  essential  fact  neces- 
sary to  estop  Michael  Righter,  is  wanting. 

It  must  be  borne  in  mind,  in  applying  the  doctrme  of 
equitable  estoppels  to  this  case,  that  it  must  be  assumed 
that  the  release  is  a  valid  instrument,  and  fully  bars  the 
claim  on  the  judgment  and  other  securities,  as  against 
Stephen  "W.  Righter.  The  doubt  about  the  original  exe- 
cution of  the  release,  if  doubt  there  be,  can  have  no  right- 
ful influence  upon  the  question,  whether  Michael  Righter 
is  precluded  by  his  subsequent  conduct  from  setting  it  up 
against  the  assignees.  Had  it  appeared  beyond  dispute 
that  it  was  given  for  a  full  consideration,  and  that  the  con- 
sequence of  avoiding  it  would  be  to  take  the  money  a 
second  time  out  of  Michael's  pocket,  the  estoppel  would 
probably  not  have  been  insisted  on,  or  if  it  had  been 
would  have  found  but  little  favor.  And  yet  this  is  the  as- 
pect in  which  we  are  bound  to  look  at  this  question. 
There  can  be  no  doubt  that  this  doctrine,  rightfully  ap- 
plied, is  calculated  to  promote  just  and  honest  conduct, 
and  that  courts  of  equity  and  of  law  ought  carefully  to 
maintain  it.  But  we  are  asked,  in  my  judgment,  to  ex- 
tend it  beyond  its  just  limits  and  beyond  any  precedent 
in  England  or  America.  I  am  not  willing  to  do  this  for 


MAECH  TEEM,  1856.  535 

Adams  v.  Hudson  County  Bank. 

the  sake-  of  saving  a  case  of  seeming  hardship.     In  my 
opinion  the  decree  should  be  affirmed. 

Decision  reversed  by  the  following  vote : 
For  affirmance — CHIEF  JUSTICE,  Judges  ELMER,  EISLET, 
VBEDENBURG,  OGDEN. 

For  reversal — Judges  ARROWSMTTH,  CORNELISON,  HAINES, 
HDTLER,  POTTS,  EYERSON,  VALENTINE,  WILLS.  » 

CITED  in  Bush,  <&  Howard  v.  Cushman,  12  C.  E.  Gr.  134  ;  Phillipsburgh 
Bank  v.  Fulmer,  2  Vr.  56. 


Between  EUSSEL  "W.  ADAMS  and  JOHN  McGRAW,  appel- 
lants, and  THE  HUDSON  COUNTY  BANK,  GEORGE  M.  COF- 
FIN, WILLIAM  L.  HANFORD,  and  JACOB  YOST,  respondents. 

The  general  rule  is,  that  in  order  to  obtain  the  dissolution  of  an  injunction, 
all  the  defendants  must  answer  the  equity  of  the  bill.  But  the  qualification 
of  the  rule  is,  that  it  is  enough  if  those  defendants  answer  upon  whom  the 
gravamen  of  the  charge  rests. 

Parol  evidence  is  not  admissible  to  show  that  the  consideration  passing  be- 
tween the  parties,  and  the  terms  upon  which  a  conveyance  is  expressed  to 
have  been  made,  are  totally  different  and  contradictory  to  the  deed  itself. 

The  American  authorities  are  more  liberal  than  the  English,  in  admitting 
parol  testimony  for  some  purposes  relating  to  the  consideration  expressed 
in  a  deed. 


This  appeal  was  taken  from  an  order  dissolving  an  in- 
junction issued  to  restrain  proceedings  at  law.  The  motion 
to  du solve  was  argued  before  the  Chancellor,  by  Mr. 
Frelinghuyficn,  and  Mr.  Bradley,  for  the  complainants,  by 
Mr.  Randolph,  for  the  Hudson  County  Bank,  and  Mr.  Gil- 
christj  for  the  other  defendants. 

On  the  sixth  day  of  February,  1856,  it  was  ordered  that 
the  injunction  be  dissolved  with  costs. 

From  tins  order  an  appeul  was  taken. 

The  Chancellor  furnished  the  court  with  the  following 
opinion,  as  containing  the  reasons  for  his  decree. 


536      COURT  OF  ERRORS  AND  APPEALS. 

Adams  v.  Hudson  County  Bank. 

WILLIAMSON,  C.  Coffin  and  Hanford,  two  of  the  defend- 
ants, were  indebted  to  the  Hudson  County  Bank,  in  a  sum 
exceeding  $20,000.  The  bank  held  commercial  and  busi- 
ness paper  of  Coffin  and  Hanford,  which  had  from  time 
to  time  been  deposited  to  their  account  in  the  bank. 
They  were  in  failing  circumstances,  and  in  order  to  secure 
the  bank  their  debt,  they  executed  to  the  bank  a 
bond  and  mortgage,  covering  their  real  estate  in  Jersey 
City,,  for  the  sum  of  seventeen  thousand  dollars,  and  also 
confessed  a  judgment  for  the  sum  of  six  thousand  dollars. 
At  the  time  of  confessing  the  judgment,  an  agreement  in 
writing  was  executed  by  the  bank,  by  which,  among  other 
things,  it  was  stipulated  and  agreed  that  all  moneys  that 
should  be  paid  to  the  said  bank  by  any  person  liable  upon 
the  said  commercial  paper  held  by  the  bank,  amounting 
to  about  $23,000,  and  all  moneys  paid  to  the  bank  by  the 
said  Coffin  and  Hanford  should  be  credited  upon  the  said 
judgment,  and  not  upon  the  mortgage,  until  the  said 
judgment  was  paid  ;  and  that  the  bank  should  be  at  liberty 
to  collect  the  moneys  due  upon  the  said  paper,  and  apply 
them  to  the  said  judgment,  and  to  no  other  purpose, 
until  the  said  judgment  should  be  paid.  The  real  estate 
mortgaged  to  the  bank  was  subject  to  other  mortgages, 
which,  together  with  the  bank  mortgage,  amounted  to 
about  $31,000. 

Coffin  and  Hanford  were  also  indebted  to  one  of  the 
complainants,  Russell  W.  Adams,  in  about  the  sum  of 
ten  thousand  dollars.  To  pay  this  indebtedness,  Coffin 
and  Hanford  and  their  wives,  on  the  19th  day  of  Novem- 
ber, 1853,  executed  and  delivered  to  Adams  their  war- 
ranty deed,  in  fee  simple,  for  the  same  real  estate  in  Jersey 
City  mortgaged,  as  aforesaid,  to  the  bank.  In  the  premises 
of  the  deed,  the  consideration  is  set  out  as  $10,000, 
following  the  description  of  the  parties.  The  Jidbendum 
and  tenedum  clause  is  as  follows :  to  have  and  to  hold  the 
above  granted,  bargained,  and  described  premises,  with 
the  appurtenances,  unto  the  said  party  of  the  second  part, 


MARCH   TERM,  1856.  537 

Adams  v.  Hudson  County  Bank. 

his  heirs  and  assigns,  to  his  and  their  own  proper  use, 
benefit,  and  behoof  for  ever,  subject  nevertheless  to  several 
mortgages  on  the  same  premises,  held  by  different  parties, 
the  amount  payable  upon  which  is  in  the  aggregate  up- 
wards of  thirty-one  thousand  dollars,  and  also  subject  to  a 
certain  judgment,  for  the  sum  of  six  thousand  dollars, 
held  and  owned  by  the  Hudson  County  Bank,  in  Jersey 
City  aforesaid.  Among  the  usual  covenants  is  one  that 
the  premises  "are  free,  clear,  discharged,  and  unencum- 
bered of  and  from  all  former  and  other  grants,  titles, 
charges,  estates,  judgments,  taxes,  assessments,  and  encum- 
brances, of  what  nature  or  kind  soever,  except  as  aforesaid" 
Adams  has  since  conveyed  one  undivided  .half  of  the  prop- 
erty to  John  McGraw,  the  other  complainant. 

The  Hudson  County  Bank  were  about  enforcing  their 
judgment  and  execution  against  the  real  estate  mentioned 
in  the  deed  and  the  mortgage.  The  complainants  exhibit 
their  bill  to  enjoin  them. 

The  equity  of  the  bill  is  here.  It  alleges,  that  when 
Coffin  and  Hanford  executed  and  delivered  their  deed  to 
Adams,  they  agreed,  as  part  consideration  for  the  extin- 
guishment of  the  debt  they  owed  him,  that  Adams  should 
have  the  benefit  of  the  said  securities  held,  as  aforesaid, 
by  the  Hudson  County  Bank,  and  to  have  the  amount 
which  the  bank  should  receive  upon  them  credited  upon 
the  judgment ;  it  alleges  that  the  bank  has  received  the 
Binn  of  five  thousand  and  fifty-four  dollars  upon  the  se- 
curities, which  they  refuse  to  credit  on  the  judgment,  but 
have  applied  to  the  general  indebtedness  of  Coffin  and 
Hanford  to  the  bank. 

There  is  no  difficulty  between  the  bank  and  Coffin  and 
Hanford.  After  the  deed  was  given  to  Adams,  Coffin  and 
Hanford  served  a  written  notice  upon  the  cashier  or  presi- 
dent of  the  bank,  to  the  effect  that  they  had  conveyed 
the  property  subject  to  the  judgment,  and  that  the  bank 
must  preserve  the  lien  of  the  judgment  upon  the  property 
for  the  benefit  of  Coffin  and  Ilanford,  and  not  appropriate 


538      COURT   OF  ERRORS  AND  APPEALS. 

Adams  v.  Hudson  County  Bank. 

the  assets  in  their  hands  to  the  satisfaction  of  the  judg- 
ment. 

The  whole  equity  of  the  bill  is  denied  very  fully  and 
circumstantially  by  the  answers,  and  I  think  the  circum- 
stances of  the  whole  transaction  are  such,  as  disclosed  by 
the  bill  itself,  as  entitle  the  defendants  to  the  full  benefit 
of  their  denial  of  the  complainant's  equity. 

The  allegation  of  the  bill  is,  that  it  was  part  of  the  con- 
sideration between  Adams  and  Coffin  and  Hanford  that 
Adams  should  have  the  benefit  of  the  securities  held  by 
the  bank,  to  be  applied  to  the  judgment.  This  is  in  direct 
contradiction  to  the  terms  of  the  deed,  which  makes  the 
mortgages  and  the  judgment  part  of  the  consideration. 
This  is  not  denied  by  the  bill.  It  admits  that  the  encum- 
brances upon  the  property,  including  this  judgment,  did 
not  amount  to  the  full  value  of  the  property,  and  that 
Adams  was  to  pay  these  encumbrances,  but  insists  he  was 
to  have  the  benefit  of  the  securities  to  be  applied  to  satisfy, 
as  far  as  they  would,  the  judgment.  Why  this  agreement, 
so  important  to  Adams,  was  not  mentioned  in  the  deed,  or 
why  it  was  not  reduced  to  writing,  is  not  in  any  way  ex- 
plained. Coffin  and  Hanford  deny  that  there  was  any  such 
agreement.  They  state  circumstantially  what  the  trans- 
action between  the  parties  was,  and  their  statement  is  sus- 
tained by  the  writings  between  them.  There  io  no  fraud 
alleged.  The  parties  rely  upon  the  agreement. 

The  defendants  are  entitled  to  have  this  H/ junction  dis- 
solved, on  the  ground  that  the  equity  of  the  lull  is  deniovl. 
They  are  entitled  to  a  dissolution  on  another  ground,  that 
it  is  not  competent  for  the  complainants  to  p  rove  that  they 
were  to  have  the  benefit  of  the  securities  to  extinguish 
the  judgment.  This  is  in  direct  contradictic  n  to  the  terms 
of  the  deed.  The  deed  conveys  the  projerty  expressly 
subject  to  the  judgment,  and  without  any  qualification. 
The  judgment  is  made  a  part  of  the  consideration  of  the 
deed.  The  agreement  set  up  by  the  complainants  is  in 
direct  contradiction — it  is,  that  the  property  was  only  to 


MARCH  TERM,  1856.  539 


Adams  v.  Hudson  County  Bank. 


be  subject  to  the  judgment  conditionally,  and  that  the 
grantee  was  to  have  the  benefit  of  the  grantor's  property 
to  pay  it ;  and  under  that  agreement  the  complainants 
now  claim  a  credit  upon  the  judgment  of  $5054.  There 
is  no  principle  upon  which  parol  evidence  of  such  a  char- 
acter is  admissible.  It  is  true  the  American  authorities 
are  more  liberal  than  the  English  in  admitting  parol  tes- 
timony for  some  purposes  relating  to  the  consideration 
expressed  in  a  deed.  It  has  been  held  that  the  deed  is  not 
conclusive  as  to  the  amonnt  of  the  consideration  ex- 
pressed, and  that  although  the  deed  acknowledges  the 
receipt  of  the  purchase  money,  the  grantor  is  not  thereby 
estopped  from  showing  that  it  has  not  been  paid. .  But  this 
is  as  far  as  the  authorities  have  gone.  If  the  agreement 
alleged  to  have  been  made  in  this  case  is  competent  to  be 
proved,  then  any  essential  part  of  a  deed  may  be  varied 
or  contradicted  by  parol.  Here  the  attempt  is  not  to  show 
that  the  amount  of  the  consideration  money  is  different 
from  that  recited  in  the  deed,  but  that  the  consideration 
passing  between  the  parties,  and  the  terms  upon  which 
the  conveyance  is  expressed  to  have  been  made,  are  to- 
tally different,  and  contradictory  to  the  deed  itself.  The 
deed  makes  the  property  subject  to  the  judgment  abso- 
lutely, the  alleged  agreement  only  conditionally. 
The  injunction  must  be  dissolved  with  costs. 

The  Chief  Justice  delivered  the  opinion  of  the  Court 
of  Appeals. 

GEEENT,  C.  J.  This  appeal  is  taken  from  an  order  dis- 
solving an  injunction  issued  to  restrain  proceedings  at  law. 
The  order  is  based  by  the  Chancellor  on  two  grounds : 

1.  Because  the  equity  of  the  bill  is  denied  by  the  answers. 

2.  Because,  on  the  case  made   by   the   complainants  in  the 
bill,   they  are  not  entitled   to  relief.     If  either  of  these 
grounds  is  well  taken,   the   order  is  right,  and  should  be 
affirmed. 

1.  The  answer  of  Coffin  and  Hanford,  two  of  the  de- 


540         COURT  OF  ERRORS  AND  APPEALS. 

Adams  v.  Hudson  County  Bank. 

fendants,  contains  a  full  and  explicit  denial  of  the  entire 
equity  of  the  bill.  If  the  answer  be  true,  it  is  clear  that 
there  is  no  equity  in  the  complainant's  case.  There  is 
nothing  in  the  answer  sufficient  to  discredit  it  or  to  de- 
prive it  of  its  efficacy  as  an  answer.  Nor  does  the  weight 
of  the  evidence  contained  in  the  affidavits  (admitting 
them  all  to  be  eompotent)  make  so  clear  a  case  for  the 
complainants  as  to  deprive  the  defendants  of  the  benefit 
of  their  answer. 

But  it  is  objected  that  the  Hudson  County  Bank  have 
not  fully  answered  the  equity  of  the  bill.  The  general 
rule  undoubtedly  is,  that  in  order  to  obtain  the  dissolution 
of  an  injunction,  all  the  defendants*  must  answer  the 
equity  of  the  bill.  But  the  qualification  of  the  rule  is, 
that  it  is  enough  if  those  defendants  answer  upon  whom 
the  gravamen  of  the  charge  rests.  Vleit  v.  Lowmason,  1 
Green's  Ch.  R.  404  and  note ;  Stoutenburgh,  Day  &  Co.  v. 
Peok,,  3  Green's  Ch.  12.  446.  In  this  case  the  gravamen  of 
the  charge  rests  on  Coffin  and  Hanford,  who  have  fully  an- 
swered. The  answer  of  the  bank  is  full,  so  far  as  it  re- 
lates to  matters  within  their  knowledge. 

This  disposes  of  the  appeal.  But  the  design  of  the  ap- 
pollant  was  probably  to  test  the  opinion  of  this  court  upon 
the  second  point  upon  which  the  order  is  based  ;  for  it  is 
obvious  that  if  the  Chancellor  is  right  upon  this  point 
the  case  is  finally  disposed  of.  This  renders  it  proper  that 
the  second  ground  of  the  Chancellor's  opinion  should 
also  be  examined. 

2.  Are  the  complainants  entitled  to  relief  upon  the 
case  made  by  the  bill  ? 

The  complainants  are  the  grantees  of  certain  real  estate 
in  Jersey  City  purchased  of  Coffin  and  Hanford.  At  the 
time  of  the  purchase  and  conveyance  of  the  land,  the 
Hudson  County  Bank  held  a  judgment  in  the  Supreme 
Cturt  for  $6000  against  the  grantors,  Coffin  and  Hanford, 
to  which,  independent  of  any  special  agreement,  the  land 
was  liable.  At  the  time  of  the  conveyance  to  Adams,  the 


MAKCH  TEEM,  1856.  541 

•    Adams  v.  Hudson  County  Bank. 

complainant,  then  existed  an  agreement  between  the 
bank  and  Coffin  and  Hanford  that  the  bank  should  apply 
the  proceeds  of  certain  collateral  securities,  held  by  the 
bank  exclusively,  toward  the  liquidation  of  the  judgment. 
The  bill  charges,  that  in  the  contract  for  the  sale  of  the 
land,  Coffin  and  Hanford  agreed  that  the  purchaser  should 
have  the  benefit  of  all  those  collaterals  so  left  with  the  bank 
and  insists  that  they  should  in  equity  be  applied  in  liquida- 
tion of  the  judgment. 

The  land  is  conveyed  in  fee  "  subject  nevertheless  to 
several  mortgages  on  the  same  premises,  held  by  different 
parties,  the  amount  payable  upon  which  is  in  the  aggregate 
upwards  of  thirty-one  thousand  dollars,  and  also  subject  to  a 
certain  judgment  for  the  sum  of  $6000,  field  and  owned  by 
the  Hudson  County  Bank  in  Jersey  City  aforesaid" 

The  complainants  insist  that,  by  virtue  of  a  parol  agfee- 
greement  between  the  grantors  and  grantee  at  the  time  of 
the  purchase,  they  are  entitled  to  have  the  land  relieved, 
in  whole  or  in  part,  from  the  lien  of  that  judgment.  The 
answer  is,  that  the  agreement  attempted  to  be  set  up  is 
in  direct  contradiction  of  the  terms  of  the  grant.  And  it 
is  difficult  to  see  how  the  effect  of  the  answer  is  to  be 
evaded.  The  grantors  convey  the  land  in  clear  and  ex- 
press terms  subject  to  the  judgment.  The  bill  seeks  to  re- 
lieve the  land  of  the  encumbrance  of  the  judgment  by  force 
of  an  alleged  parol  agreement. 

It  is  objected  that  the  purchase  of  land  subject  to  en- 
cumbrances involves  no  covenant  on  the  part  of  the  grantee 
that  he  will  pay  the  encumbrances. 

The  rule  certainly  is,  that  the  purchase  of  an  equity  of 
redemption  does  not  render  the  purchaser  personally  liable 
for  the  encumbrances  on  the  property.  There  is  in  such 
purchase  no  contract,  express  or  implied,  that  the  pur- 
chaser assumes  the  payment  of  the  encumbrances  as  a  per- 
sonal liability.  Stevenson  et  al.  v.  Black,  Sancton's  R.  338  ; 
Tichenor  v.  Dodd,  3  Greeris  Ch.  P.  454. 

But  the  question  in  this  case  is  not  whether  the  pur- 

VOL.  n.  2  z 


542      COUKT  OF  ERRORS  AND  APPEALS. 

Adams  v.  Hudson  County  Bank.     • 

chaser  is  personally  liable  to  pay  the  judgments,  but 
whether,  by  the  terms  of  the  grant,  the  land  is  subject  to 
the  encumbrance.  That  it  is  so  by  the  express  language  of 
the  deed  is  too  clear  to  admit  of  controversy. 

It  is  further  objected,  that  though  the  land  be  liable  to 
the  lien  of  the  judgment,  it  is  liable  contingently  only,  viz. 
so  far  as  the  judgment  should  remain  unsatisfied  under 
the  arrangement  between  the  grantors  and  the  bank,  or 
so  far  only  as  the  judgment  might,  under  the  stipulation 
of  the  bank,  constitute  a  legal  lien  on  the  land ;  and  it  is 
insisted  that,  by  virtue  of  the  agreement  between  the 
grantors  and  the  bank,  the  judgment  was  not  a  lien  on 
the  land.  But  that  is  not  the  effect  of  the  agreement.  By 
operation  of  law,  the  judgment  is  a  lien  on  real  estate,  and 
there  is  nothing  in  the  agreement  which  invalidates  the 
lien.  The  agreement  of  the  bank  is,  that  the  execution 
shall  be  levied  only  on  certain  specified  personal  property, 
but  it  is  entirely  silent  as  to  the  lien  of  the  judgment  upon 
the  real  estate.  That  lien  exists  without  the  levy  of  an 
execution. 

But  it  is  said  that  at  the  time  of  the  conveyance  there 
was  in  the  hands  of  the  bank  funds  or  securities  nearly 
sufficient  to  extinguish  the  judgment,  and  that  the  bal- 
ance, alone,  can  constitute  a  lien  on  the  land.  If  at  the 
time  of  the  conveyance  the  securities  had  been  collected, 
and  applied  by  the  bank  in  'part  satisfaction  of  the  judg- 
ment, the  argument  might  be  sound.  But  the  securities, 
or  the  avails  of  the  securities,  still  continued  the  personal 
property  of  the  grantors.  The  judgment  remained  un- 
satisfied in  whole  or  in  part.  And  if  the  funds  of  the  grant- 
ors are  to  be  applied  to  extinguish  the  judgment  exist- 
ing at  the  time  of  the  conveyance,  in  what  sense  can  it 
be  said  that  the  land  was  conveyed  subject  to  the  judg- 
ment? The  plain  and  obvious  meaning  of  the  deed  is, 
that  the  grantees  should  take  the  land  with  the  encum- 
brance of  the  judgment.  How  can  it  be  held  that  the 
are  to  pay  the  judgment  out  of  their  own  funds 


MARCH  TEEM,  1856.  543 


Williams  v.  Carle. 


without  conflicting  directly  with  the  terms  of  the  deed  and 
the  obvious  intention  of  the  parties  to  the  instrument  ? 
The  decree  must  be  affirmed. 

Decision  affirmed  by  the  following  vote  : 

For  affirmance — CHIEF  JUSTICE,  Judges  AREOWSMITH, 
RlSLEY,  CORNELISON,  HAINE8,  R.YEBSON,  ELMER,  OGDEN, 
VREDENBURGH,  POTTS,  VALENTINE,  WILLS. 

For  reversal — None. 


Between  EBENEZER  S.  WILLIAMS,  administrator  of  Sarah 
Williams,  deceased,  appellant,  and  DANIEL  CARLE,  ad- 
ministrator of  Ann  Carle,  deceased ;  DANIEL  C.  WIL- 
LIAMS, THEODORE  WILLIAMS,  and  SARAH  ANN  WILLIAMS, 
respondents. 

If  a  woman,  during  the  course  of  a  treaty  of  marriage  with  her,  makes, 
without  notice  to  the  intended  husband,  a  conveyance  of  any  part  of  her 
property,  though  good  prima  facie,  it  may  be  set  aside  because  affected 
with  that  fraud. 

In  the  case  of  actual  fraud,  a  court  of  equity  will  not  refuse  relief  on  account 
of  lapse  of  time  where  the  bill  was  filed  with  great  promptness  after  the 
supposed  discovery  of  the  alleged  fraud  was  made. 

If  a  woman,  on  the  eve  of  her  marriage,  rightfully  placed  a  part  of  her 
estate  in  her  sister's  hands,  in  trust  for  the  children  of  her  intended  marri- 
age, and  there  were  no  children  of  the  marriage,  the  fund  belongs  to  the 
husband  on  the  death  of  the  wife. 

Where  there  were  children,  who,  as  cestui  qae  trusts,  disclaimed  title,  and 
renounced  all  right  to  the  fund,  and  declined  to  accept  it,  the  fund  belongs 
to  the  husband,  as  administrator. 

The  filing  of  a  cross  bill  does  not,  as  a  matter  of  course,  stay  the  proceeding! 
in  the  original  suit. 

If  the  party  filing  the  cross-bill  wishes  to  stay  the  cause  upon  the  originial 
pleadings,  he  should  give  notice,  and  apply  to  the  court  for  an  order  to 
that  effect. 

Where  the  crons-bill  was  not  filed  until  a  year  after  the  filing  of  the  original 
bill,  and  after  the  proofs  had  been  taken,  and  the  original  cau«e  noticed  for 


544      COURT  OF  ERRORS  AND  APPEALS. 

Williams  v.  Carlo. 

hearing,  and  a  proper  decree  could  be  made  without  the  necessity  of  a 
cross-bill,  the  Chancellor  would  not  delay  the  hearing  on  the  original  bill 
on  the  ground  that  the  plaintiffs  had  not  answered  the  cross-bill.  By 
WILLIAMSON,  Chancellor. 

Where  a  cross-bill  was  filed  by  two  of  the  defendants,  who  had  put  in  their 
answers  disclaiming  any  interest  in  the  original  suit,  and  the  cross-bill 
alleged  that  the  answers  were  filed  through  mistake,  &c.,  the  pleadings 
were  incongruous  and  irregular:  the  proper  course  is  to  apply  for  leave  to 
withdraw  their  answers.  By  WILLIAMSON,  Chancellor. 


This  cause  was  heard  at  May  term,  1855,  of  the  Court  of 
Chancery. 

Sarah  Williams,  the  wife  of  the  complainant,  died  in  the 
year  1834.  The  complainant  took  out  letters  of  administra- 
tion upon  her  estate.  He  exhibited  this  bill  against  Daniel 
Carle,  as  the  administrator  of  Ann  Carle,  who  was  the  sister 
of  Mrs.  Williams,  and  against  his  three  children  by  his  said 
wife.  The  bill  alleges,  that  while  the  complainant  was  in 
treaty  of  marriage,  his  intended  wife,  Sarah,  without  his 
knowledge  or  consent,  in  contemplation  of  her  expected 
marriage,  placed  seven  hundred  dollars  in  the  hands  of 
Ann  Carle,  her  sister,  in  trust  for  any  children  she  might 
have  by  her  marriage ;  that  Ann  Carle  died  in  the  year 
1852,  having  this  money  in  her  possession,  with  a  large 
amount  of  accumulated  interest ;  that  the  complainant  did 
not  make  the  discovery  of  this  fraud  upon  his  marital 
rights  until  after  the  death  of  Ann  Carle,  it  was  revealed 
a,nd  made  known  by  her  administrator.  The  prayer  of  the 
bill  is,  that  he  may  be  declared  entitled  to  seven  hundred 
dollars  and  interest,  and  that  Daniel  Carle,  as  the  personal 
representative  of  the  trustee,  may  be  decreed  to  pay  it  to 
him. 

Jacob  Vannatta  and  E.  W.  WJielpley,  for  the  complainant, 
cited  Newland  on  Con.  424 ;  Howard  v.  Hooper,  2,  Chan. 
42  ;  Taylor  v.  Pugh,  1  Hare  608  ;  Goddard  v.  /Snow,  1 
Russ.  485  ;  Whites  Lead.  Ca,  in  Eq.  313  ;  Eal  v.  Montgo- 
mery, 2  Ves.  Jr.  193  ;  Carlton  v.  Earl  of  Dorset,  2  Vern.  IT ; 
Sbratchmore  v.  Bowes,  1  Ves.  Jr.  22 ;  9  B.  Monroe  ;  5  Ire- 


MARCH  TERM,  1856.  545 


"Williams  v.  Carle. 


Jell  163  ;    6  /J.  546  ;    1  Roper,  H.  &  W.  163  ;    Hill  on, 
Trustees  162. 

Jos.  Annin  and  J.  W.  Miller,  for  defendants,  cited 
Clancy  455  ;  Bligkfs  cast,  freeman's  Rep.  92  ;  Hunt  v. 
Matthews,  1  Vern.  408  ;  King  v.  Cotton,  1  P.  W.  674  ;  2 
7^.  264  ;  2  6fo*?  28  ;  Newlantfs  £q.  429  ;  Story  §  273  ; 
1  Yes.  &  Beam  354  ;  1  Z>m.  26. 


At  the  term  of  October,  1855,  a  final  decree  was  made  in 
the  Court  of  Chancery,  by  his  Honor  Benjamin  Williamson, 
whereby  it  was  adjudged  that  the  complainant  was  not  en- 
titled to  the  relief  sought  and  urged  for  by  him,  and  that 
his  bill  should  be  dismissed  with  costs.  From  this  decree 
an  appeal  was  taken. 

The  Chancellor  furnished  the  court  with  the  following 
opinion,  as  containing  the  reasons  for  his  decree. 

WILLIAMSO'N,  C.  The  defendants'  counsel  when  this 
cause  was  moved  for  final  hearing,  raised  a  preliminary 
question  upon  the  pleadings.  They  objected  to  the  hearing 
of  the  cause,  on  the'  ground  that  the  complainant  had  not 
answered  the  cross-bill  filed  by  two  of  the  defendants', 
and  insisted  that  the  original  cause  could  not  be  heard 
until  the  case  made  by  the  cross-bill  was  ready  for  a  final 
hearing. 

The  filing  of  a  cross-bill  does  not,  as  a  matter  of  course, 
stay  the  proceedings  in  the  original  suit.  If  the  party 
filing  the  cross-bill  wishes  to  stay  the  cause  upon  the  origi- 
nal pleadings,  he  should  give  notice,  and  apply  to  the 
court  for  an  order  to  that  effect.  "VVe  have  no  rule  of  the 
court  regulating  the  proceedings;  and  the  only  statute 
upon  the  subject  is  that  which  declares,  that  "  if  a  cross- 
bill be  exhibited,  the  defendant  to  the  first  bill  shall  an- 
swer thereto  before  the  defendant  to  the  cross-bill  shall 
be  compelled  to  answer  such  cross-bill."  In  all  other 
respects,  the  proceedings  are  governed  by  the  English 
practice.  This  practice  will  be  found  correctly  stated  In 

2  z* 


546       COUKT  OF  EPJIORS  AND  APPEALS. 

Williams  v.  Carle. 

the  case  of  White  v.  Buloid,  2  Paige  164.  If  the  proceed- 
ings in  the  original  suit  are  stayed  until  both  causes  are 
ready  for  hearing,  then  the  complainant  in  the  cross-suit 
may  have  an  order  that  both  causes  may  be  heard  at  the 
same  time.  This  mode  of  proceeding  is  necessary,  in  order 
to  prevent  the  original  complainant  from  being  unneces- 
sarily delayed  in  his  cause.  In  the  present  case,  the  origi- 
nal bill  was  filed  in  May,  1854.  The  cross-bill  was  not  filed 
until  May,  1855,  after  the  proofs  had  been  taken,  and  the 
original  cause  noticed  for  hearing.  It  is  true,  upon  the 
hearing  of  a  cause,  the  court  will  in  some  instances,  of  its 
own  motion,  order  a  cross-bill  to  be  filed,  as  where  such 
pleadings  are  indispensable  in  order  that  a  proper  decree 
may  be  made  to  settle  the  matter  in  controversy.  In  such 
case,  the  original  suit  must  of  necessity  be  delayed.  I  do 
not,  however,  see  any  necessity  for  a  cross-bill  for  any  such 
purpose  here.  If  the  complainant  can  sustain  the  case  made 
by  his  bill,  he  is  entitled  to  a  decree  against  the  defendants  ; 
and  none  of  the  defendants,  if  the  complainant  succeeds,  are 
entitled  to  any  collateral  relief.  If  the  complainant 
fails,  with  the  view  I  take  of  the  case,  the  defendants  are 
entitled  to  no  relief  upon  the  trust  set  up  by  them  in  their 
cross-bill. 

There  is  another  objection  to  this  cross-bill.  It  was 
irregularly  exhibited.  It  is  filed  by  two  of  the  defendants, 
who  had  put  in  their  answers  disclaiming  any  interest  in 
the  original  suit.  They  now  come  with  their  cross-bill, 
alleging  that  they  filed  their  answers  improvidently  and 
through  mistake,  and  under  a  misapprehension  of  their 
rights.  Their  proper  course  was  to  have  applied  to  the 
court  for  leave  to  withdraw  their  answers.  The  court 
might  have  granted  leave  upon  such  terms  as,  under  the 
circumstances,  it  might  have  been  proper  to  impose.  The 
pleadings  are  now  irregular  and  incongruous.  By  one 
pleading  they  deny  a  trust,  and  disclaim  any  interest  in 
it,  by  another,  they  set  up  the  trust,  and  ask  that  it  may 
be  established. 


MAECH  TERM,  1856.  547 


Williams  v .  Carle. 


I  shall  proceed  to  examine  the  case,  as  it  is  presented  by 
the  pleadings  and  proofs  in  the  original  cause. 

.The  complainant  is  the  administrator  of  his  deceased 
wife,  and  the  case  made  by  his  bill  is  this :  that  he  was 
in  expectation  of  a  considerable  fortune  upon  the  death 
of  his  father;  that  Sarah  Carle  was  entitled  to  a  large 
property  from  the  estate  of  her  deceased  father,  and  also 
from  that  of  a  deceased  brother;  that  these  expectations 
made  a  marriage  between  himself  and  Sarah  Carle  a  suit- 
able one,  and  with  other  considerations,  induced  him  to 
propose  their  connection  by  marriage ;  that  after  their  en- 
gagement and  agreement  to  marry,  Sarah  Carle,  without 
his  consent  or  knowledge,  and  to  deprive  Mm  of  the  benefit 
of  her  property,  and  in  fraud  of  his  marital  rights, 
placed  in  the  hands  of  her  sister,  Ann  Carle,  the  sum  of 
seven  hundred  dollars,  for  the  use  and  benefit  of  any  chil- 
dren the  said  Sarah  might  have;  that  the  marriage  was 
consummated  in  1819 ;  that  they  had  three  children,  who 
are  all  of  age  and  now  living;  that  his  wife  died  in  1834; 
that  Ann  Carle,  the  alleged  trustee,  died  in  1852,  and  her 
estate  was  administered  upon  by  one  of  the  defendants, 
Daniel  Carle ;  that  in  December,  1853,  the  complainant 
for  the  first  time  discovered,  through  the  admission  of 
Daniel  Carle,  the  disposition  of  the  seven  hundred  dol- 
lars. The  complainant  prays  that  Daniel  Carle,  the  ad- 
ministrator of  the  trustee,  Ann  Carle,  may  be  decreed  to 
pay  him  the  seven  hundred  dollars,  with  the  interest  that 
lias  accumulated. 

The  three  children  of  the  complainant,  with  Daniel 
Carle,  the  administrator  of  Ann,  are  the  defendants  in  the 
suit.  The  three  children  filed  their  disclaimers.  Daniel 
Carle,  by  his  answer,  admits  all  the  facts  charged  in  the 
bill,  except  that  of  any-sum  of  money  having  been  placed 
by  Sarah  Carle  in  the  hands  of  her  sister  Ann  for  any 
such  purpose  as  that  mentioned  in  the  bill.  Of  this  he 
denies  all  knowledge,  information,  or  belief. 

The  defendants,   in   resisting   the   complainant's   claim, 


548      COURT  OF  ERRORS  AND  APPEALS. 

Williams  v.  Carle. 

object  to  his  maintaining  this  suit,  on  account  of  the 
length  of  time  which  has  intervened  between  the  period 
when  the  alleged  fraud  is  said  to  have  been  committed 
and  the  filing  of  the  present  bill.  There  is  no  objection  on 
account  of  the  lapse  of  time.  The  bill  charges  actual 
fraud ;  and  as  was  said  in  MicJioud  et  aL  v.  Girod  et  al.  (4 
Howard  561),  "  in  the  case  of  actual  fraud,  no  case  can  be 
found  in  which  a  court  of  equity  has  refused  to  give  re- 
lief within  the  lifetime  of  either  of  the  parties  upon  whom 
the  fraud  is  proved,  or  within  thirty  years  after  it  has  been 
discovered  or  become  known  to  the  party  whose  rights  are 
affected  by  it."  The  present  bill  was  filed  with  great 
promptness  after  the  supposed  discovery  of  the  alleged 
fraud  was  made.  The  first  intimation  the  complainant  had 
of  any  fraud  was  in  December,  1854,  and  in  less  than  six 
months  after,  this  suit  was  instituted. 

Nor  is  there  any  doubt  as  to  the  law's  affording  the 
complainant  ample  redress  under  the  circumstances,  if  the 
fact  is  established  that  Sarah  Carle  placed  the  money  in 
the  hands  of  her  sister  Ann  at  the  time  and  for  tlie  pur- 
pose alleged.  The  rule  is  kid  down  by  Lord  Thurlow,  in 
the  case  of  the  Countess  of  Stratckmore  v.  Bowes  (1  Ves. 
Jr.  22).  "  A  conveyance  made  by  a  wife,  whatsoever  may 
be  the  circumstances,  and  even  the  moment  before  the  mar- 
riage, is  prima  facie  good,  and  becomes  bad  only  upon  the 
imputation  of  fraud.  If  a  woman,  during  the  course  of  a 
treaty  of  marriage  with  her,  makes,  without  notice  to  the 
intended  husband,  a  conveyance  of  any  part  of  her  prop- 
erty, I  shall  set  it  aside,  though  good  prima  facie,  because 
affected  with  that  fraud."  There  is  some  conflict  of  au- 
thorities as  to  whether  the  mere  fact  of  concealment, 
alone,  on  the  part  of  the  woman  is  sufficient  to  consti- 
tute a  fraud  upon  the  intended  husband's  marital  rights ; 
and  whether,  in  addition  to  the  concealment,  it  must  not 
be  shown  that  the  intended  husband  knew  the  woman  to 
be  possessed  of  the  property  which  she  disposed  of.  The 
English  and  American  cases  will  be  found  collected  in 


MAKCH  TERM,  1856.  549 


Williams  v.  Carle. 


the  notes  to  the  case  of  Stratchmore  v.  JBowes  (1  Leading 
Cases  in  £q.,  Hare  &  Wallace's  notes,  338).  In  the  case  of 
Goddard  v.  Snow  (1  Buss.  J  485),  a  woman  ten  months  be- 
fore her  marriage,  but  after  the  commencement  of  that 
intimate  acquaintance  with  her  future  husband  which 
ended  in  marriage,  made  a  settlement  of  a  sum  of  money, 
which  he  did  not  know  her  to  be  possessed  of ;  the  mar- 
riage ceremony  took  place,  she  concealing  from  him  both 
her  right  to  the  money  and  the  existence  of  the  settle- 
ment :  ten  years  afterwards  she  died  ;  and  after  her  death  he 
filed  a  bill  to  have  the  money  paid  him.  It  was  held  that 
the  settlement  was  void,  as  being  a  fraud  on  his  marital 
rights.  Although  some  dissatisfaction  has  been  expressed 
with  this  case,  and  it  was  said  by  Lord  Brougham,  in  St. 
George  v.  Wake  (1  Myl.  &  1£.  622),  that  the  principle  was 
carried  further  in  Goddard  v.  Snow  than  in  any  other  case, 
I  think  the  case  was  decided  upon  the  right  principle.  In 
Taylor  v  Pugh  (1  Hare  608),  it  was  argued  by  the  defend- 
ant's counsel,  that  as  the  defendant  was  ignorant  of  his 
wife's  having  any  property,  and  as  she  had  practised  no 
actual  deception  upon  him,  a  court  of  equity  ought  not 
to  interfere ;  but  the  Vice  Chancellor  declared  the  argu- 
ment unsound,  and  approved  the  rule,  as  stated  by  Roper, 
that  "  deception  will  be  inferred  if,  after  the  commence- 
ment of  the  treaty  for  marriage,  the  wife  should  attempt 
to  make  any  disposition  of  her  property  without  her  in- 
tended husband's  knowledge  or  concurrence."  In  England 
v.  Downs  (2  Beav.  524),  the  master  of  the  roUs  says,  "  The 
non-acquisition  of  property,  of  which  (the  husband)  had 
no  notice,  is  no  disappointment,  but  still  his  legal  right 
to  property  actually  existing  is  defeated,  and  the  vesting 
and  continuance  of  a  separate  power  in  his  wife  over  pro- 
perty which  ought  to  have  been  his,  and  which  is  with- 
out his  consent  made  independent  of  his  control,  is  a 
surprise  upon  him,  and  might,  if  previously  known,  have 
induced  him  to  abstain  from  the  marriage." 

The  present  case  is  free  from  all  difficulty  in  respect  to 


550    COUKT  OF  ERRORS  AND  APPEALS. 

Williams  v.  Carle. 

these  rules,  about  which  there  appears  some  difference  in 
the  minds  of  learned  judges.  It  is  admitted  that  the  com- 
plainant knew  that  his  wife  was  entitled  to  a  portion  of 
her  deceased  father's  and  brother's  estate,  and  that  during 
the  treaty  of  marriage,  he  expected  that  upon  its  consum- 
mation he  would,  as  •  her  husband,  be  entitled  to  this  pro- 
perty. It  is  perfectly  clear  that  if  any  of  this  property  was 
disposed  of  without  his  consent  during  the  treaty  of  mar- 
riage his  just  expectations  were  disappointed,  and  that  he 
was  fraudulently  deprived  of  his  marital  rights. 

The  counsel  of  the  defendants  further  insisted,  that  the 
disposition  which  is  alleged  to  have  been  made  of  the 
property,  being  for  the  benefit  of  the  children  of  the  pro- 
posed marriage,  the  trust  was  a  meritorious  one,  and  such 
as  a  court  of  equity  will  not  disturb.  The  cases  of  Hunt 
v.  Matthews  (I  Vern.  408),  and  of  King  v.  Cotton  (2  P.  W. 
674:),  were  cited  as  sustaining  the  rule,  that  a  settlement 
by  a  widow  upon  her  children  by  a  former  marriage,  even 
if  made  during  the  treaty  for  a  second  marriage  without 
the  consent  or  knowledge  of  her  intended  husband,  is 
valid.  It  was  argued  that  a  settlement  for  the  benefit  of 
children  of  the  contemplated  marriage  is  equally  merito- 
rious. But  I  cannot  understand  npon  what  just  principle 
a  trust  in  either  case  can  be  declared  valid  by  a  court  of 
equity.  In  Hunt  v.  Matthews,  the  court  is  reported  to  have 
said,  or  rather  thought,  for  that  is  the  word  used,  that  a 
widow  might  with  a  good  conscience,  before  she  put  her- 
self under  the  power  of  a  second  husband,  provide  for 
the  children  she  had  by  the  first.  Now  there  may  be  no 
difference  of  opinion  as  to  the  propriety  of  her  making 
such  a  provision  for  her  children,  and  in  some  cases  she 
would  be  conscientiously  and  morally  bound  to  do  so ; 
but  the  question  remains,  could  she  conscientioualy  do  it 
without  the  knowledge  of  her  husband  ?  Could  she  con- 
tract with  him  upon  the  assumption  that  upon  its  execu- 
tion the  property  was  to  be  his,  and  yet  clandestinely  place 
the  property  beyond  his  control  ?  The  settlement,  though 


MARCH  TERM,  1856.  551 


Williams  v.  Carle. 


a  meritorious  one,  would  not  be  less  a  fraud  upon  the 
husband;  and  the  court  interferes  with  it  because  it  is 
done  in  a  manner  which  makes  it  a  fraud  upon  his  marital 
rights. ,  But  many  of  the  cases  in  Yernon  are  very  inac- 
curately reported,  and  this  would  seem  to  be  so  in  the  case 
of  Hunt  v.  Matthews,  for  in  Mr.  RaithJby's  edition  of 
Yernon  it  appears,  by  an  extract  from  the  decree  in  the 
case,  that  the  husband  consented  to  the  settlement  being 
made  by  his  intended  wife  upon  her  children. 

In  King  v.  Cotton,  the  settlement  was  made  "before  the 
treaty  of  marriage  •  for  the  Lord  Chancellor  said,  "it  was 
a  very  reasonable  thing  for  a  widow,  while  it  was  in  her 
power,  to  make  a  provision  for  her  children  by  her  former 
husband;  and  this  being  before  her  treaty  of  marriage 
with  Mr.  King,  it  had  been  impossible  to  have  asked  him 
to  be  a  party  thereto,  he  not  being  thought  of." 

The  master  of  the  rolls,  in  the  case  of  England  v.  Downs 
(2  Eeav.  527),  gave  no  countenance  to  the  proposition,  that 
a  settlement  like  that  in  Hunt  v.  Matthews  would  be  sus- 
tained in  equity,  if  made  without  the  intended  husband's 
consent.  He  remarks,  "a  woman,  in  such  circumstances, 
can  only  reconcile  all  her  moral  duties  by  making  a  proper 
settlement  on  herself  and  her  children  with  the  knowledge 
of  her  intended  husband"  The  weight  of  American  au- 
thorities is,  that  a  settlement  upon  children  of  a  former 
husband,  if  made  without  the  knowledge  of  the  intended 
husband  and  during  the  treaty  of  marriage,  is  fraudulent, 
and  will  be  set  aside  as  against  him.  See  cases  collected  in 
1  Lead  Ca.  in  Eq.,  H.  &  W.  351. 

Let  us  now  examine  the  facts  by  which  the  complain- 
ant expects  to  maintain  his  case.  He  relies  upon  the  an- 
Bwer  of  Daniel  Carle,  upon  his  evidence  given  as  a  witness, 
called  by  the  complainant  himself,  and  upon  the  admissions 
and  conduct  of  Carle. 

The  bill  charges,  that  Daniel  Carle  admitted  that  Sarah 
Carle  left  in  the  hands,  or  under  the  control  of  her  sister, 
Ann  Carle,  the  sum  of  seven  hundred  dollars,  to  be  kept 


552      COURT  OF  ERRORS  AXD  APPEALS. 


Williams  v.  Carle. 


and  invested  by  the  said  Ann  for  the  use  or  benefit  of  the 
children  of  the  said  Sarah,  in  case  she  should  afterwards 
have  any  children  ;  that  Aim  had  received  and  invested  the 
money,  and  that  it,  and  the  accumulations  thereon,  then 
amounted  to  fifteen  hundred  dollars,  or  more,  and  that  he, 
the  said  Daniel  Carle,  had  been  advised,  and  was  going  to 
put  that  fund  in  with  the  other  estate  of  the  said  Ann  Carle, 
to  be  drawn  out  by  and  paid  to  whomsoever  the  same  might 
legally  belong. 

Daniel  Carle,  by  his  answer,  acknowledges  that  he  made 
such  admission.  Take  the  admission  without  any  explana- 
tion or  qualification,  and  conceding  that  a  decree  might 
be  made  upon  an  admission  of  Carle  alone,  there  is  not 
enough  in  it  to  entitle  the  complainant  to  a  decree.  The 
complainant  must  show  that  the  money  was  disposed  of 
by  Sarah  Carle  during  the  treaty  of  marriage  between  her 
and  the  complainant,  and  in  a  case  like  this,  where  fraud 
is  alleged  and  actual  fraud  is  the  ground  upon  which  relief 
is  sought,  a  fact  so  essential  to  establish  the  fraud  must  not 
be  left  to  probability  or  inference.  The  fact  must  be 
proved.  This  is  the  whole  gravamen  of  the  complainant's 
case. 

In  the  case  of  England  v.  Downs,  the  witness  testified 
that  Mr.  Mason  told  him  he  was  about  to  be  married,  and 
instructed  him  to  prepare  the  settlement ;  that  he  did  not 
think  it  was  prepared  or  executed  with  the  privity  or  as- 
sent of  her  then  intended  husband.  But  the  witness  did 
not  state  who  the  then  intended  husband  was.  There 
were  only  two  months  elapsed  between  the  date  of  the 
settlement  and  Mrs.  Mason's  marriage.  The  impression 
upon  the  mind  of  the  counsel  who  argued  against  the  set- 
tlement was,  that  the  fact  was  sufficiently  established  of  its 
being  made  during  the  treaty  of  marriage  with  the  per- 
son she  actually  did  marry,  John  T.  Broad ;  and  in  argu- 
ing they  assumed  the  fact  to  be  so,  so  strong  was  the  in- 
ference of  that  fact  from  the  evidence.  The  master  of  the 
rolls  held  that  the  fact  was  not  sufficiently  proved  of  the 


HAKCII  TERM,  1856.  553 


Williams  v.  Carle. 


settlement  having  been  made  during  the  treaty  of  mar- 
riage, because,  though  the  witness  said  the  settlement  was 
made  without  the  assent  of  her  then  intended  husband, 
some  one  else  might  have  been  her  then  intended  husband 
other  than  Broad.  i 

But  here  it  is  not  charged  that  Carle  admitted  that  the 
money  was  disposed    of    during  the  treaty   of   marriage; 
and   his   admission  in  his  answer   does  not    embrace  that     • 
fact. 

The  bill,  however,  does  charge  the  fact  to  be,  that  the 
disposition  was  made  of  the  money  during  the  treaty  of 
marriage ;  and  Carle  was  called  upon  to  answer,  as  to  his 
knowledge,  information,  and  belief  upon  this  subject. 
Carle  had  a  right,  by  his  answer,  to  explain  and  qualify, 
the  admission  which  it  was  alleged  he  had  made  ;  and  in 
making  the  discovery  which  the  bill  calls  upon  him  to 
make  of  his  knowledge,  information  and  belief,  the  de- 
fendants are  entitled  to  the  benefit  of  his  whole  answer. 
By  his  answer,  he  denies  that  he  has  any  knowledge  him- 
self of  the  fact  that  Sarah  Cole  ever  placed  any  money 
in  the  hands  of  her  sister  for  the  purpose  named  in  the 
bill.  He  denies  all  knowledge  or  information  of  any  evi- 
dence by  which  the  fact  can  be  established.  He  then 
states  all  the  facts  bearing  upon  the  subject  within  his 
knowledge,  and  which  are  the  facts  which  influenced  him 
to  make  the  admission  which  he  did.  He  states,  that  be- 
fore the  marriage  of  his  sister  and  the  complainant,  and 
while  the  same  was  in  contemplation,  he  remembered 
there  had  been  some  conversation  in  the  family  of  the 
defendant  respecting  the  propriety  of  his  sister  Sarah's 
placing  seven  hundred  dollars  in  the  hands  of  her  sister 
Ann,  to  be  held  by  her  in  trust  for  any  children  she)  the 
said  Sarah  might  have  by  the  said  complainant ;  and  also, 
that  a  few  days  before  the  death  of  the  said  Ann,  she  said 
to  the  defendant  these  words :  "  There  is  fifteen  hundred 
dollars  coming  to  the  children."  He  declares  that  the 
foregoing  is  the  or.ly  evidence  he  ever  had  that  any  funds 

VOL.  ii.  3  A. 


554:   COUKT  OF  EEEOKS  AND  APPEALS. 

Williams  c.  Carle. 

were  ever  placed  in  the  hands  of  the  said  Ann  in  trust  for 
the  children  of  the  complainant,  and  he  therefore  deter- 
mined to  treat  all  the  property  which  came  into  his  hands 
as  the  property  of  Ann,  his  intestate,  unless  upon  repre- 
senting to  those  interested  in  the  estate  what  he  supposed 
might  be  the  fact,  they  should  consent  to  the  division  of 
the  fifteen  hundred  dollars  among  the  three  children  of 
the  complainant.  It  will  be  seen  that  here  is  an  explana- 
tion of  the  alleged  admission,  which  deprives  it  of  the 
efficacy  of  concluding  the  rights  of  the  defendants.  It  is 
a  full  denial  of  the  fact,  that  to  the  knowledge  or  infor-' 
mation  of  the  defendant,  his  sister  Sarah  placed  the  seven 
hundred  dollars,  as  alleged,  in  the  hands  of  Ann  Carle. 
The  facts  stated  by  the  defendant,  of  the  talk  in  his  own 
family,  and  of  what  Ann  said  just  before  her  death,  do 
not  establish  that  Sarah  Carle,  while  in  treaty  of  marriage 
with  the  complainant,  and  to  defraud  him  of  his  marital 
rights,  fraudulently  placed  seven  hundred  dollars  in  the 
hands  of  Ann  Carle,  in  trust  for  such  children  as  she  might 
have  by  the  complainant.  It  appears  to  me  quite  unneces- 
sary to  criticise  the  answer,  for  no  court  would  be  justified 
to  conclude  from  it  that  it  established  the  alleged  fraud. 
The  complainant  has  admitted  this  by  filing  his  replication. 
By  taking  issue,  he  undertakes  to  prove  the  denial  of  the 
answer  untrue.  Our  next  inquiry  is,  how  far  he  has  been 
successful  in  doing  so. 

He  relies  upon  the  evidence  of  Carle,  whom  he  has  ex- 
amined as  a  witness,  and  upon  the  evidence  of  other  wit- 
nesses as  to  the  conduct  and  declarations  of  Carle. 

It  does  not  appear  by  what  authority  Carle  was  exam- 
ined as  a  witness  in  the  cause.  The  rule  is,  that  where 
the  complainant  examines  a  defendant  as  a  witness,  he 
waives  the  right  to  a  decree  against  him.  There  are  ex- 
ceptions to  the  rule  in  the  cases  of  executors  and  trustees 
of  persons  who  are  made  defendants  as  merely  holding 
the  fund,  and  who  are  therefore  only  nominally  interested 
in  the  suit.  But  such  is  not  the  case  with  Daniel  Carle. 


MABCH  TERM,  1856.  555 


Williams  v.  Carle. 


He  is  not  a  nominal  party,  or  made  such  simply  as  the 
administrator  of  Ann  Carle.  He  is  charged  with  actual 
fraud.  The  bill  charges,  that  he  advised  and  encouraged 
the  disposition  of  the  seven  hundred  dollars,  and  the  con- 
cealment of  the  fact  from  the  complainant.  He  is,  besides, 
personally  interested  in  the  estate  of  his  intestate,  and 
as  one  of  her  next  of  kin,  entitled  to  a  distributive 
share  of  her  estate.  He  cannot  be  brought  within  any  of 
the  exceptions  to  t*he  rule.  But  he  might  be  examined 
with  the  consent  of  all  parties;  and  this  consent  is  im- 
plied from  the  fact,  that  no  objection  was  interposed  before 
the  master.  His  evidence  was  read  without  objection  at  the 
hearing. 

What  does  Daniel  Carle  prove  as  a  witness  ?  Nothing 
more  than  he  admits  by  his  answer.  He  denies  all  know- 
ledge or  information  as  to  any  fact  bearing  upon  the  case, 
except  the  conversation  in  his  own  family  and  what  Ann 
said  a  few  days  before  her  death.  I  have  already  remarked, 
this  court  cannot  from  these  facts  draw  the  legal  infer- 
ence that  seven  hundred  dollars  was  fraudulently  placed 
by  Sarah  Carle  in  the  hands  of  her  sister,  Ann  Carle. 
They  do  not  prove  the  fact,  that  any  money,  for  any  pur- 
pose, was  ever  placed  by  Sarah  in  the  hands  of  her  sister 
Ann. 

The  complainant  has  proved  the  admissions  and  con- 
duct of  Daniel  Carle.  It  would  be  strange,  indeed,  if  any 
court  would  permit  the  mere  admissions  and  conduct  of 
an  administrator  to  mulct  the  estate  to  the  amount  of 
debt  which  is  sought  here.  Giving  them  their  greatest 
weight,  I  do  not  think  they  amount  to  anything.  They 
only  prove  that  Daniel  Carle  himself  believed  that  the 
money  was  placed  by  one  sister,  in  the  hands  of  the  other, 
in  trust  for  the  complainant's  children,  and  that  acting 
upon  that  belief,  he,  for  one,  was  willing  and  disposed  to 
see  the  trust  executed.  But  this  court  cannot  decide  the 
case  upon  the  belief  of  the  witness.  It  is  not  right  that 
the  defendant  should  be  prejudiced  by  it.  He  has  stated 


556       COUET  OF  EEKOKS  AND  APPEALS. 

. ; 

"Williams  v.  Carlo. 

\hefacts  upon  which  his  belief  is  founded.  The  court  can- 
not tell  what  amount  of  evidence  is  sufficient  to  produce 
that  belief  in  the  mind  of  the  witness.  The  question  is, 
whether  the  facts  stated  by  the  witness,  and  not  his  belief, 
are  sufficient  to  justify  a  decree  in  favor  of  the  complainant. 
If  they  are  not,  the  court  cannot  decide  in  his  favor,  no 
matter  what  may  be  the  belief  of  Daniel  Carle. 

With  this  view  of  the  case,  the  conduct  of  Carle,  on 
which  the  complainant  relies,  can  have  no  influence  in  en- 
abling the  court  to  reach  a  correct  conclusion.  In  making 
his  inventory,  as  administrator,  he  kept  fifteen  hundred 
dollars  out  of  it.  This  only  shows  the  bias  of  his  own 
mind,  and  what  his  own  belief  was.  He  tells  us  why  he  did 
it,  and  we  must  now  determine  whether  he  was  justified  in 
doing  so. 

It  was  insisted  that  the  admissions  and  conduct  of  Carle 
impeach  his  testimony,  and  show  that  he  did  not  tell  the 
whole  truth  in  giving  his  evidence.  I  am  at  a  loss  to  con- 
ceive how  this  can  help  the  complainant.  Daniel  Carle  was 
the  complainant's  own  witness.  If  he  was  successful  in  im- 
peaching his  own  witness,  and  in  showing  that  he  was  not  a 
man  of  veracity,  and  one  upon  whom  the  court  can  rely, 
what  becomes  of  the  complainant's  case  ?  The  complainant 
has  no  other  witness.  Surely  it  will  not  be  contended  that 
if  the  complainant  cannot  recover  upon  the  evidence  of  the 
witness  upon  oath,  they  may  recover  upon  his  contradictory 
statement  when  not  under  oath  and  by  proving  that  he  is 
not  a  credible  witness. 

The  admissions  of  Carle,  for  the  purpose  of  contradicting 
him  as  a  witness,  were  not  admissible  as  evidence.  He 
was  the  complainant's  own  witness,  and  it  was  not  com- 
petent for  the  party  calling  him  to  impeach  him.  The 
case  presents  this  singular  aspect,  of  a  party  relying  upon 
the  testimony  of  one  single  witness  to  prove  his  case,  and 
yet  endeavoring  to  impeach  that  witness  by  showing  that 
his  statements  under  oath  are  not  entitled  to  credit.  I  do 
not  mean  to  insinuate  that  the  complainant  has  been  at 


MARCH  TERM,  1856.  557 


Williams  v.  Carle. 


all  successful  in  impeaching  the  testimony  of  Daniel  Carle. 
His  evidence,  it  is  true,  does  not  appear  well.  It  appears 
to  have  been  very  difficult  to  draw  the  truth  from  the  wit- 
ness ;  and  by  his  manner  of  giving  his  testimonv,  he  has 
done  himself  no  credit.  But  all  this  should  not  prejudice 
the  other  defendants  in  the  suit.  If  the  complainant  has 
been  unable  to  get  the  truth  from  the  witness,  it  is  his 
own  misfortune,  and  other  parties  in  interest  must  not  be 
made  to  suffer  on  that  account. 

I  have  examined  the  case  with  great  care,  commencing 
my  investigation  with  the  impression  produced  upon  me 
by  the  argument,  that  the  complainant  was  entitled  to  a 
decree.  I  have,  however,  come  to  the  conclusion,  perfectly 
satisfactory  to  myself,  the  complainant  has  not  made  out 
his  case,  and  is  not  entitled  to  the  relief  he  prays  for. 

The  appeal  was  argued  by  Vanatta  and  Wlielpley,  for 
the  appellant,  and  Annin  and  Miller,  for  respondent. 

Points  of  the  appellant. 

1.  The  evidence  contained   in  the  pleadings  and  proofs 
is  sufficient  to  establish  the  facts,   that   Sarah,  the  former 
wife  of  the  appellant,  shortly  before  and  in  contemplation 
of  her  marriage  with  the  appellant,  and  without  his  privity, 
assent  or  knowledge,  placed  under  the  control  of  Ann 
Carle  money,  or  choses  in  action,  to  the  value  or  amount 
of  seven  hundred  dollars,   for  the  use  of  any  children  of 
the  said  complainant  which  she,  the  said  Sarah,  after  her 
said  marriage  might  bear. 

2.  The  facts  thus  established  make  the  trust  thus  cre- 
ated, as  against  the  appellant,  illegal  and  void. 

3.  The  appellant  is  entitled  to  recover  and  receive  for 
his  own  use  the  said  seven  hundred  dollars,  and  the  in- 
crease thereof. 

4.  The  said  Daniel  Carle  having,  on   the   13th  of  De- 
cember, 1853,  admitted  to  the  said  appellant  that  Sarah, 
the  said  appellant's  first  wife,   before   her  marriage  had 

3  A* 


558   COUKT  OF  ERKOBS  AND  APPEALS. 

Williams  v.  Carle. 

left  in  the  hands  of  her  sister  Ann  the  sum  of  seven  hun- 
dred dollars,  to  be  held  in  trust  for  the  future  children  of 
the  said  Sarah,  in  case  she  should  have  any,  and  that  the 
Baid  seven  hundred  dollars  at  the  death  of  the  said  Ann 
amounted  to  fifteen  hundred  dollars  or  over,  and  the  said 
appellant  having  acted  upon  that  admission  by  instituting 
his  suit  in  the  Court  of  Chancery  for  the  recovery  of  the 
money  s,o  admitted  to  have  been  left  with  said  Ann  by 
said  Sarah,  the  said  Daniel  Carle  is  and  should  be  estopped 
from  denying  or  attempting  to  disprove  the  fact,  that  the 
said  Sarah,  before  her  marriage  with  the  appellant,  did 
leave  with  said  Ann  the  said  sum  of  seven  hundred  dol- 
lars, and  also  from  denying  the  fact,  that  the  said  Ann,  at 
her  death,  still  held  the  said  seven  hundred  dollars,  and 
the  increments  thereof,  making  in  all  over  fifteen  hundred 
dollars.  . 

5.  It  being  proved  that  the  said  Sarah,  before  her  mar- 
riage with  the  appellant,  did  leave  with  said  Ann  the  sum 
of  seven  hundred  dollars  for  the  nse  of  the  children  of 
the  said  Sarah,  and  the  said  children  having  solemnly  dis- 
claimed all  title  to   or  interest  in  the  said  seven  hundred 
dollars,  and  the  increase  thereof,   the  said  appellant  is  en- 
titled to  recover  aud  receive  the  same,   as  administrator  of 
the  said  Sarah,  although  the  said  Sarah  may  have  created 
the  said  trust,  and  left  the  said  seven  hundred  dollars  with 
the  said  Ann  prior  to  the  commencement  of  the  treaty  of 
marriage  between  the  said  Sarah  and  the  said  appellant. 

6.  It  being  proved  that  the  said  Sarah  did  at  some  time 
leave  with  said  Ann  money  or  choses  in  action,  which  said 
Ann  held  and  retained  until  her  death,   and  which  at  the 
period  last  mentioned  amounted  to   over  fifteen  hundred 
dollars,  if  the  said  money  or  choses  in  action  were  left 
with  said   Ann  at  any  time   after  the  marriage  between 
said  Sarah  and  the  said  appellant,   the  said  appellant  is 
entitled  to  recover  the  same  in  this  suit. 

.The. Chief  Justice  delivered  the  opinion  of  the  Court 
.4}f  .Appeals. 


MARCH  TERM,  1856.  559 


Williams  ?;.  Carle. 


GREEN,  C.  J.  The  case,  as  it  stands  before  this  court,  is 
\vithin  very  narrow  limits.  The  Chancellor  has  decided, 
in  accordance  with  the  clear  weight  of  authority,  that  if 
the  fact  is  established  that  Sarah  Carle  placed  the  money 
in  controversy  in  the  hands  of  her  sister,  Ann  Carle,  at 
the  time,  and  for  the  purpose  alleged  in  the  bill  of  com- 
plaint, the  complainant  is  entitled  to  the  redress  which  he 
asks.  The  Chancellor  has  further  decided  that  the  claim 
is  not  barred  by  the  statute  of  limitations.  The  only  re- 
maining question  in  the  case  is,  whether,  in  point  of  fact, 
the  money  was  placed  in  the  hands  of  Ann  Carle  by  the 
wife  of  the  complainant,  without  his  knowledge,  previous 
to  their  marriage,  for  the  use  of  the  complainant's  chil- 
dren. 

The  defendant,  the  administrator  of  Ann  Carle,  doee 
not  deny  that  the  money  is  in  his  hands.  His  conduct 
shows  not  only  hu  belief  that  the  money  was  held  by  Ann 
in  trust  for  the  purpose  charged  in  the  bill,  but  an  un 
doubted  knowledge  of  that  fact.  Soon  after  the  death  of 
Ann,  he  told  one  of  the  complainant's  children  that  there 
was  $1500  in  his  hands,  which  belonged  to  her  and  her 
brothers.  He  stated,  in  the  language  of  the  witness,  "  that 
aunt  Ann  said  there  was  $1500  there  for  us ;  money 
which  mother  left  there."  As  administrator  of  Ann's  es- 
tate, the  defendant  set  aside  the  sum  of  $1500  out  of  the 
money  found  in  her  possession,  as  not  belonging  to  her 
estate.  Though  advised  by  counsel  to  do  so,  he  declined 
putting  it  into  the  inventory.  He  omitted  it  not  by  acci- 
dent, but  by  design,  from  an  inventory,  which  he  exhibited 
under  oath,  as  containing  a  true  and  perfect  inventory  of 
her  estate.  He  offered  to  pay  over  the  money  to  the  chil- 
dren, in  accordance  with  the  terms  of  the  trust,  with  the 
consent  of  the  next  of  kin  of  Ann.  This  consent  lie  re- 
quired obviously  not  from  any  doubt  of  the  truth  of  the 
case  in  his  own  mind,  but  because  the  knowledge  of  the 
facts  rested  mainly,  if  not  exclusively,  with  himself.  He 
found  among  the  papers  of  Ann  no  written  evidence  of 


560   COURT  OF  ERRORS  AND  APPEALS. 

Williams  v.  Carle. 

the  existence  and  nature  of  the  trust,  and  therefore,  with 
great  propriety  for  his  own  security,  he  asked  the  assent 
of  the  persons  interested  in  her  estate  to  his  disposal  of 
the  fund  in  pursuance  of  the  trust.  The  next  of  kin  of 
Ann,  the  persons  interested  in  her  estate,  all  gave  their 
consent  to  the  payment  of  the  money  to  the  children  of 
Sarah,  pursuant  to  the  terms  of  the  trust.  It  would  have 
been  so  paid  but  for  the  objection  of  the  complainant  him- 
self, who  interposed  his  marital  rights. 

Daniel  Carle  was  not  only  the  administrator  of  Ann, 
but  he  was  one  of  her  next  of  kin,  and  entitled  to  a  share 
of  her  estate.  In  excluding  this  fund  from  the  estate  of 
Ann,  he  acted  against  his  own  interest.  He  was  in  a  po 
sition,  of  all  others,  to  know  the  truth  in  regard  to  this 
fund.  His  sister  Ann  and  himself  were  both  unmarried. 
They  lived  together  in  the  same  family.  He  must  have 
been  cognizant,  to  a  greater  or  less  degree,  of  the  extent 
of  her  property  and  of  her  business  transactions.  He  was 
interested  by  her  with  the  settlement  of  her  estate.  Their 
relations  were  friendly,  They  had  no  nearer  or  dearer  ties 
than  those  which  bound  them  to  each  other.  Living  thus 
as  brother  and  sister  in  the  same  household,  he  was  in  a 
situation  to  know,  and  it  is  scarcely  credible  that  he  did 
not  know  the  truth  in  regard  to  the  real  condition  of  the 
funds  in  her  hands.  But  there  is  evidence  that  he  had  di- 
rect information  on  the  subject  of  this  trust.  His  knowl- 
edge of  it  was  derived  both  from  Sarah  and  Ann,  the. 
only  parties  to  the  transaction.  Sarah,  before  her  mar- 
riage, consulted  him  on  the  subject  of  leaving  the  money 
there,  or,  to  use  his  own  language,  she  talked  to  him 
about  it.  We  have  Sarah's  declaration,  that  "  upon  her 
marriage,  her  husband  and  his  father  made  so  much  fuss 
about  her  property,  that  she  left  it  behind  with  her  folks  ;" 
and  it  is  not  pretended  that  it  was  left  with  any  one  but 
Ann.  Upon  her  death-bed,  Ann  gave  to  the  defendant, 
her  administrator,  an  injunction,  which  he  understood 


MAECH  TERM,  1856.  561 


Williams  v.  Carle. 


related  to  this  fund,  aiid  upon  which  he  acted  in  the  settle 
ment  of  her  estate. 

It  is  objected,  that  it  is  not  enough  that  the  defendant 
should  believe  the  truth  of  the  complainant's  case,  but 
the  court  must  see  that  he  had  sufficient  evidence  for  his 
belief ;  and  that  the  statement  he  makes  as  a  witness  of 
•what  he  heard  from  his  sisters  is  not  sufficient  to  warrant 
his  belief,  and  therefore  the  court  cannot  act  upon  it.  But 
is  not  this  too  limited  a  view  of  the  testimony  \  Is  the 
statement  made  by  the  defendant  of  what  he  heard  from 
his  sisters  all  the  evidence  in  the  cause  upon  which  the 
court  may  base  its  action  ? 

The  examination  of  the  defendant  affords  the  clearest 
evidence  that  he  was  not  a  willing  witness  for  the  com- 
plainant, and  that  he  has  testified  to  nothing  in  the  com- 
plainant's favor  not  demanded  by  the  truth.  His  evidence 
is  above  all  suspicion,  so  far  as  it  makes  in  favor  of  the 
complainant's  case.  Without  impugning  at  all  the  integ- 
rity of  the  witness,  it  is  not  remarkable  that  he  should 
not  remember  distinctly,  and  be  able  to  detail  what  passed 
between  his  sister  Sarah  and  himself  on  the  subject  of  the 
trust  when  it  was  created,  over  forty  years  ago.  She  may 
well  have  stated  to  him  distinctly  the  fact,  that  she  had 
placed  the  money  in  the  hands  of  her  sister  Ann  for  a 
specified  purpose.  The  conviction  in  his  own  mind  re- 
sulting from  the  conversation  may  be  clear,  and  yet  he 
may  be  unable,  after  so  great  a  lapse  of  time,  to  remem- 
ber one  word  of  the  conversation ;  and  he  may  therefore 
say  with  truth,  that  he  does  not  remember  what  she  said. 
Material  facts,  which  influenced  his  mind,  may  totally 
have  escaped  his  recollection.  That  they  did  so,  is  very 
clear.  It  is  in  evidence,  that  after  the  death  of  Ann,  he 
informed  a  relative  that  the  money  which  Sarah  left  with 
Ann  for  the  children  of  the  complainant  amounted  to 
$1500.  He  further  stated  that,  in  Sarah's  lifetime,  she 
sometimes  came  to  get  her  interest,  and  sometimes  Ann 
took  it  to  her.  This  fact,  upon  hie  examination,  he  ap- 


562        COURT  OF  ERRORS  AND  APPEALS. 

Williams  v.  Carle. 

pears  to  have  forgotten  ;  but  it  tends  strongly  to  show  that 
he  had  not  only,  from  the  statements  of  his  sisters,  but 
from  their  acts,  the  most  certain  knowledge  of  the  real 
ownership  of  the  fund,  and  that  it  was  held  by  Ann,  as 
trustee.  And  that  the  interest  on  the  fund  was  paid  by 
Ann  to  Sarah,  in  her  lifetime,  is  confirmed  by  the  fact, 
that  interest  on  the  original  fund  of  $700,  from  the  death 
of  Sarah  to  the  death  of  Ann,  would,  with  the  principal, 
amount  to  about  $1500,  the  sum  admitted  to  have  been 
in  Ann's  hands  at  her  death. 

In  regard  to  the  statement  proved  to  have  been  made 
by  Ann  in  her  lifetime,  that  there  was  $1500  in  her 
hands  for  the  children,  it  is  said,  that  the  statement  as 
equivocal,  and  its  import  so  uncertain  that  a  stranger  can 
gather  nothing  from  it.  The  more  important  inquiry  is, 
what  did  Ann  intend,  and  what  did  the  defendant  under- 
stand by  it.  It  was  a  death-bed  instruction,  given  by  Ann 
to  her  brother,  who  became  her  administrator,  touching 
funds  in  her  possession.  It  was  given  three  days  before 
her  death.  There  was  ample  opportunity  for  inquiry  by 
the  brother  as  to  her  real  meaning,  if  there  was  a  particle' 
of  doubt  in  his  mind  on  the  subject.  Circumstances,  al- 
ready referred  to,  warrant  the  belief  that  he  was  fully  ac- 
quainted with  the  existence  and  nature  of  the  trust.  And 
is  it  not  manifest  that  he  must  have  understood  perfectly 
to  what  fund  his  sister  referred,  and  of  whom  she  spoke  ? 
If  it  were  not  so,  would  he  not,  as  a  brother,  have  in- 
quired further  respecting  it  ?  Is  it  credible  that  he  enter- 
tained at  that  time  the  least  doubt  on  the  subject  ?  And 
if  he  perfectly  understood  and  applied  the  instruction 
given,  does  it  at  all  affect  the  question,  that  the  language 
used  was  general,  or  that  its  import  to  a  stranger  would 
have  been  equivocal  or  unintelligible  ?  That  he  did  per- 
fectly understand  her  meaning  is  obvious  from  the  fact, 
that  he  made  no  further  inquiry  on  the  subject ;  that  he 
acted  unhesitatingly  and  against  his  own  interest  upon  his 
understanding  of  the  meaning ;  that  upon  her  death,  he 


MARCH  TEEM,  1856.  563 


"Williams  u  Carle. 


informed  the  complainant's  daughter  that  there  was  $1500 
in  his  hands,  left  by  her  mother  with  her  aunt  Ann,  and 
that  Ann  said  there  was  $1500  for  herself  and  her  bro- 
thers. He  kept  the  money  out  of  Ann's  estate.  He  re- 
fused to  administer  upon  it.  He  agreed  to  pay  it  over  to 
the  children  of  Sarah,  upon  obtaining  the  consent  of  the 
next  of  kin.  That  consent  was  given,  and  the  payment  of 
the  money  prevented  only  by  the  interference  of  the 
father  of  the  children.  And  yet,  in  the  face  of  all  these 
facts,  we  are  asked  to  decide  that  there  is  no  evidence 
that  the  money  was  in  Ann's  hands,  or  that  it  belongs  to 
the  children.  We  have  then  this  extraordinary  state  of 
things :  Sarah  says  the  money  was  left  in  Ann's  hands ; 
Ann  says  the  money  was  left  in  her  hands  for  Sarah's  chil- 
dren. The  brother,  and  the  administrator  of  Ann,  who 
was  in  a  position  to  know  the  whole  truth,  and  who  re- 
ceived Ann's  death-bed  instruction  on  the  subject,  in- 
forms the  children  that  the  money  is  in  his  hands.  Against 
his  own  interest,  he  refuses  to  administer  upon  it  as  a 
part  of  Ann's  estate.  He  makes  oath  that  it  forms  no  part 
of  her  estate.  He  offers  to  pay  it  over  to  the  children  of 
Sarah,  with  the  consent  of  the  next  of  kin  of  Ann.  The 
next  of  kin,  at  a  sacrifice  of  their  own  interest,  upon  a 
conviction  of  the  truth,  consent  to  the  arrangement ;  and 
yet  this  court  is  asked  to  decide  that  there  is  no  evidence 
that  the  fund  is  in  existence.  With  great  deference,  it 
seems  to  me  that  the  evidence  which  entirely  satisfied  the 
stakeholder  of  the  money,  the  administrator  of  Ann's  es- 
tate, the  person  who  of  all  others  was  in  a  situation  ta 
know  and  must  have  known  the  truth,  and  induced  him 
to  act  against  his  own  interest ;  the  evidence  which  satis- 
fied all  the  next  of  kin  of  Ann  that  the  money  did  not 
belong  to  her  estate,  and  induced  them  to  relinquish  all 
claim  to  it,  nay  the  very  fact  of  the  recognition  of  the 
trust  by  all  the  parties  interested  in  Ann's  estate,  ought 
to  be  sufficient  to  satisfy  the  conscience  of  a  court  of 
equity. 


564      COURT  OF  ERRORS  AND  APPEALS. 

Williams  v.  Carle. 

The  money  clearly  does  not  belong  to  the  estate  of  Ann 
Carle ;  neither  her  administrator  nor  her  next  of  kin  pre- 
tend that  it  does.  They  do  not  claim  it.  To  whom,  then, 
does  it  belong  ?  It  is  said  that  it  belongs  to  the  children, 
and  that  the  court  must  protect  their  interests.  The  an- 
swer is,  that  the  children  have,  by  their  answer  to  the 
bill,  disclaimed  all  right  and  interest  in  the  fund.  Now 
admitting  that  there  was  no  legal  fraud  on  the  marital 
rights  of  the  husband,  admitting  that  Sarah,  the  com- 
plainant's wife,  on  the  eve  of  her  marriage,  rightfully 
placed  a  part  of  her  estate  in  her  sister's  hands  in  trust 
for  the  children  of  her  intended  marriage,  if  there  had 
been  no  children  of  the  marriage,  would  not  the  fund 
have  belonged  to  the  husband  on  the  death  of  the  wife  ? 
There  were  children,  but,  as  cestui  que  trusts,  they  disclaim 
title ;  they  renounce  all  right  to  the  fund,  and  decline  to 
accept  it.  To  whom,  then,  does  it  belong  ?  Surely  not  to 
the  trustee,  but  to  the  estate  of  Sarah,  and  to  her  husband, 
as  her  administrator.  In  any  aspect  of  this  case,  I  see  no 
escape  from  the  conclusion  that  the  defendant,  Daniel 
Carle,  is  a  trustee,  and  liable  for  the  funds  in  his  hands  to 
the  complainant,  the  husband  and  administrator  of  Sarah 
Williams. 

The  complainant  is  entitled  to  recover  the  fund  of 
$1500,  with  interest  from  the  death  of  Ann  Carle.  But 
under  the  peculiar  circumstances  of  the  case,  the  defendant 
was  fully  justified  in  refusing  to  pay  over  the  money,  ex 
cept  under  a  decree  or  by  the  direction  of  the  court.  He 
is  therefore  entitled  to  his  costs.  The  defendant  should 
be  permitted  to  deduct  from  the  amount  of  the  fund  and 
interest  his  taxed  costs  of  defence,  both  in  the  Court  of 
Chancery  and  in  this  court. 

The  decree  of  the  Chancellor  must  be  reversed,  and  the 
proceedings  remitted  to  the  Court  of  Chancery,  that  the 
case  may  be  proceeded  in  accordingly. 

The  following  dissenting  opinions  were  read 


MARCH  TERM,  1856.  565 

Williams  v.  Carle. 

POTTS,  J.  The  complainant,  who  is  the  administrator  of 
his  deceased  wife,  Sarah,  filed  his  bill  in  this  case  against 
Daniel  Carle,  who  is  the  administrator  of  Ann  Carle,  de- 
ceased, and  the  three  children  of  Ebenezer  and  Sarah 
Williams,  alleging  that  while  his  courtship  or  treaty  of 
marriage  with  the  said  Sarah  was  pending,  she,  the  said 
Sarah,  left  in  the  hands,  or  under  the  control  of  her  sister, 
Ann  Carle,  the  sum  of  $700,  to  be  kept  and  invested  by 
the  said  Ann,  for  the  use  or  benefit  of  the  children  of  the 
said  Sarah,  in  case  she  should  afterwards  have  any  children ; 
that  the  same  had  been  so  invested,  and  with  its  ac- 
mulation  amounted  to  $1500,  or  more.  The  bill  further 
alleges,  that  the  marriage  between  the  complainant  and 
said  Sarah  took  place  March  17th  1819 ;  that  said  Sarah 
died  on  the  19th  of  November,  1834 ;  that,  in  1837,  he 
married  her  sister,  who  is  still  living ;  that  Ann  Carle  died 
intestate,  about  the  25th  of  September,  1852,  never  having 
been  married ;  and  that,  on  the  13th  December,  1853,  he 
was  informed  for  the  first  time,  by  Daniel  Carle,  of  this 
deposit  having  been  made  with  Ann  Carle,  thirty-five 
years  before,  for  the  purposes  aforesaid.  He  insists  that 
this  was  in  fraud  of  his  martial  rights,  and  prays  that  the 
trust  may  be  set  aside,  and  the  money  paid  over  to  him, 
with  all  the  interest  which  has  accrued  since  the  deposit  was 
made. 

Ann  Carle,  as  has  been  stated,  died  in  1852.  She  left, 
as  appears,  in  personal  estate  nearly  $10,000,  chiefly  in- 
vested in  bonds  and  notes.  She  made  no  disposition  of 
any  of  her  property,  and  left  behind  her  no  written  evi- 
dence of  any  kind  that  she  had  any  such  trust  fund  in  her 
hands  as  is  mentioned  in  the  bill.  Her  next  of  kin  are 
Daniel,  and  Lydia,  the  present  wife  of  Williams,  and  the 
children  of  Elizabeth  and  those  of  Sarah,  her  two  deceased 
sisters. 

The  complainant  then  seta  up  a  claim  to  have  paid  to 
him  out  of  the  estate  of  Ann  Carle,  deceased,  the  sum  of 
$700,  with  the  interest  thereon,  from  the  time  of  the 

VOL.  n.  3  B 


566      COURT  OF  ERRORS  AND  APPEALS. 

Williams  v.  Carle. 

alleged  deposit,  that  is  from  the  year  1818,  up  to  the  time 
of  said  Ann's  death,  amounting,  as  he  says,  to  considerably 
over  $2000  ;  and  to  establish  his  right  he  is  bound,  in  the 
first  place,  to  prove  the  allegation  upon  which  it  is  founded, 
to  wit,  that  his  former  wife  actually  deposited  with  Ann, 
or  left  with  her  before  the  marriage,  the  said  sum  of 
money. 

The  only  important  evidence  in  support  of  this  allega- 
tion is  to  be  found  in  the  answer  and  declarations  of  Daniel 
Carle. 

The  bill  sets  out  the  information  given  to  the  complain- 
ant by  Carle,  in  1853,  and  calls  upon  Carle  to  answer  under 
oath  as  to  the  truth  of  this  information  given,  and  his  knowl- 
edge of  the  fact.  Daniel  answers,  that  he  does  not  himself 
know  that  any  suck  sum,  or  any  other  sum,  was  ever  placed 
in  the  hands  of  the  said  Ann  by  the  said  Sarah,  previous 
to  her  marriage  with  the  complainant  /  that  he  never, 
in  any  way  or  manner,  counselled  or  advised  any  invest- 
ment or  concealment  of  any  such  funds.  He  admits  that 
on  a  certain  occasion,  at  his  own  house  and  in  the  pre- 
sence of  the  complainant,  his  wife  arid  children,  and 
several  others,  Mr.  Annin,  his  attorney,  by  his  authority 
and  at  his  request,  stated  that  Sarah,  the  complainant's  first 
wife,  before  her  marriage,  had  left  in  the  hands  of  her 
sister  Ann,  the  sum  of  $700,  to  be  held  in  trust  for  the 
future  children  of  the  said  Sarah,  in  case  she  should  have 
any,  and  that  said,  money  amounted,  at  Ann's  death,  to 
$1500,  or  over  ;  but  that  as  no  evidence  of  the  fact  was  to 
be  found  among  the  papers  of  said  Ann,  he,  as  her  adminis- 
trator, intended  to  put  the  same  in  with  said  Ann's  estate, 
unless  by  the  consent  of  those  interested  in  the  estate,  he  was 
allowed  to  pay  it  over  to  the  children.  He  gives  his  reasons 
for  having  made  this  statement  by  his  attorney.  He  says, 
that  before  the  marriage  of  Sarah  with  the  complainant, 
and  while  the  same  was  in  contemplation,  he  remembered 
there  had  been  some  conversation  in  his  family  respecting 
the  propriety  of  said  Sarah's  placing  $700  in  the  hands 


MABCH  TERM,  1856.  567 


Williams  r.  Carle. 


of  her  sister  Ann,  to  be  held  in  trust,  &c. ;  and  that  a  few 
days  before  the  death  of  said  Ann,  she  said  to  him,  "  there 
is  $1500,  or over ',  coming  to  the  children"  Thai  the  foregoing 
is  the  only  evidence  he  ever  had  that  any  such  funds  were  so 
placed  in  Ann's  hands,  and  that  he  never  knew  that  any  ar- 
rangement of  the  kind  proposed  was  ever  carried  into  effect. 

The  defendant  was  subsequently  called  as  a  witness  by 
the  complainant,  and  testified,  in  relation  to  the  conversa- 
tion in  the  family  before  the  marriage,  that  Sarah  talked  to 
him  about  the  matter,  but  he  did  not  know  whether  Ann 
was  present  or  not ;  that  Ann's  remark,  above  stated,  was 
made  to  him  in  her  last  sickness,  two  or  three  days  before 
her  death  •  that  she  was  in  bed  ;  that  he  don't  remember 
anything  more  being  said  ;  that  she  was  so  far  gone  he  did 
not  want  to  trouble  her  with  any  inquiries. 

Upon  the  question,  whether  the  $700  was  actually  left 
by  Sarah  in  Ann  Carle's  hands,  this  is  the  whole  evidence. 
In  the  course  of  a  long  examination  of  Daniel  Carle,  no- 
thing more  is  elicited  as  to  his  knowledge  of  the  matters 
stated  in  his  answer.  Ann  Vail  is  called.  She  says  Daniel 
told  her  what  he  authorized  his  attorney  to  tell  the  com- 
plainant. She  states,  indeed,  something  her  aunt  Sarah 
(Mrs.  Williams)  told  her,  but  this  is  not  evidence  in  sup- 
port of  her  husband's  claim.  Sarah  Williams  is  called,  and 
testifies  that  Daniel  told  her  what  he  told  Ann  Vail.  But 
the  defendant,  in  his  answer,  swears  that  if  he  said  so  to 
anybody,  it  was  for  the  reasons  he  had  before  stated. 
Daniel  C.  Williams  and  William  Jtf.  Clark  are  called,  and 
testify  to  what  passed  at  the  meeting  when  Mr.  Annin  made 
the  statement  mentioned  in  the  answer,  but  without  vary- 
ing it  in  substance.  This  testimony  therefore  leaves  the 
case  precisely  where  it  stood  upon  the  answer. 

Then  the  evidence  as  to  the  fact  of  the  deposit  of  this 
money  with  Ann  Carle  consists — 1.  Of  flic  conversation 
in  the  family  of  Daniel  previous  to  Sarah's  marriage.  And 
all  that  we  know  of  that  is,  that  there  had  been  a  conver- 
sation about  the  propriety  of  such  a  measure ;  that  Sarah 


56S      COURT  OF  ERRORS  ASV  APPEALS. 

Williams  c.  Carle. 

bad  spoken  to  the  defendant  about  it.  He  swears  tbat  be 
does  not  know  tbat  any  money  was  ever  paid  to  Ann  or 
left  witb  ber ;  saw  notbing  of  tbe  kind ;  beard  nothing  of 
the  kind.  Standing  alone,  this  amounts  to  positively  no- 
thing. It  is  only  by  coupling  it  witb  the  death-bed  decla- 
ration of  Ann,  thirty-four  or  five  years  after,  that  it  be- 
comes of  any  importance  at  all.  That  declaration  was, 
"  there  is  $1500,  or  over,  coming  to  the  children,"  made 
on  a  sick  bed  by  a  sick  woman,  two  or  three  days  before 
ber  death  to  Daniel  Carle  alone,  without  one  further  ward 
of  explanation.  How  coming  ?  coming  from  whom  ?  com- 
ing to  tbe  children  ?  what  children  ?  Does  she  say  Sarah 
bad  deposited  money  witb  her  for  her  children  ?  She  does 
not.  Does  she  say  there  is  $1500  coming  to  Sarah's  chil- 
dren out  of  my  estate  ?  She  does  not.  Does  she  say  this 
money  is  coming  to  Sarah's  children  at  all  ?  She  does  not. 
And  yet  upon  the  case  as  made,  it  is  affirmed  that  she  is 
now,  for  the  first  time  in  ber  life,  disclosing  the  important 
fact  of  tbe  creation  of  a  trust  in  favor  of  these  children 
which  had  been  locked  up  in  ber  own  bosom  for  eighteen 
years,  the  period  that  had  elapsed  since  her  sister's  death  ; 
a  secret  trust  created  thirty-four  years  before,  and  as  far 
as  appears,  never  known  to  anybody  but  Ann  and  Sarah 
herself — never  revealed  by  either  during  tbat  time,  not  even 
to  the  cestui  que  trusts  themselves. 

It  is  true  that  Ann  Vail  says  Daniel  Carle  told  ber,  in 
1853,  that  Sarah,  sometimes,  in  her  lifetime,  came  and  got 
the  interest,  and  when  she  did  not,  Ann  went  and  took 
it  to  her.  Daniel  is  not  asked  about  this.  But  the  com- 
plainant states,  in  his  bill,  that  for  twelve  or  fourteen 
years  after  their  marriage,  be  left  a  considerable  portion 
of  her  funds  under  her  own  control,  and  that  it  was  not 
until  he  purchased  a  farm,  that  be  called  upon  ber  for  ber 
funds,  and  that  «he  then  gave  up  to  him,  as  he  then  under- 
stood and  supposed,  and  always  supposed  until  five  months 
before  be  filed  bis  bill,  all  the  funds  which  she  owned  at 
tbe  time  of  tbe  courtship  and  marriage,  with  all  the  inter- 


MAKCH  TEEM,  1856.  569 


Williams  r.  Carle. 


est  which  had  accrued ;  but  it  is  quite  as  probable  that  she 
may  have  without  his  knowledge  received  some  portion  of 
the  accruing  interest  upon  these  funds,  and  concealed  that 
fact  from  him,  as  that  she  kept  back  and  concealed  a  por- 
tion of  the  principal. 

I  do  not  say  that  in  this  answer  and  evidence,  taken  to- 
gether, there  is  not  enough  to  raise  &  probability  that  the 
money  claimed  was  in  fact  left  by  Sarah  in  Ann's  hands, 
as  charged  in  the  bill.  I  think  there  is.  But  my  difficulty 
is,  that  there  is  no  positive  proof  ,  nor  anything  that  amounts 
to  conclusive  evidence  of  the  fact.  The  burthen  of  proof 
was  on  the  complainant  in  the  court  below.  The  Chan- 
cellor held,  that  for  the  want  of  such  proof,  he  had  failed 
to  support  his  bill.  The  appellant  here  is  bound  to  satisfy 
us  that'  in  this  the  Chancellor  erred,  and  he  has  not  done  so 
to  my  satisfaction. 

The  counsel  of  the  appellant  lays  great  stress  upon  the 
fact,  that  Daniel  Carle  believed  the  money  had  been  depo- 
sited, as  charged ;  that  he  was  witting^  if  the  other  heirs 
consented,  to  pay  over  the  money  to  the  children  ;  and  that 
he  kept  it  out  of  the  inventory.  But  whatever  Daniel 
Carle,  or  any  other  heirs  of  Ann  Carle  believed,  or  may 
have  been  willing  to  do  in  reference  to  the  children,  and 
whatever  their  motive  or  the  influence  which  induced  them 
may  have  been  to  express  such  consent,  we  are  not  at  liberty 
to  believe  because  they  believed  /  and  as  far  as  they  are  be- 
fore the  court,  they  are  here  resisting  the  complainant's 
claim,  and  asking  such  protection  as  the  facts  would  in  the 
case  entitle  them  to. 

Undoubtedly,  in  the  absence  of  positive  proof,  we  may 
look  to  the  circumstances  of  the  case  for  additional  light ; 
and  if  these  are  sufficiently  strong  to  satisfy  the  judgment, 
we  may  take  the  case  as  proved.  But  what  are  the  circum- 
stances here  ? 

The  allegation  is,  that  $700  was  deposited  with  Ann 
Carle  by  Sarah,  in  1818  or  19,  in  trust,  tfcc.  Ann  died 
thirty-five  years  afterwards,  and  not  a  scrap  of  paper  is 

SB* 


570      COUKT  OF  EKKOBS  AND  APPEALS. 

Williams  v.  Carle. 

found  in  reference  to  such  deposit,  neither  among  the 
papers  of  the  alleged  trustee  nor  in  the  possession  of  any- 
body else.  It  is  alleged,  that  during  Sarah's  lifetime,  a 
period  of  sixteen  years,  she  paid  Sarah  the  interest  upon 
this  fund,  but  no  receipt  for  a  dollar  of  interest  is  found. 
According  to  the  alleged  terms  of  the  trust,  after  the 
death  of  Sarah,  the  money  belonged  to  the  children  of 
Ebenezer  Williams.  Sarah  died  in  1834  ;  Ann  lived  until 
1852,  a  period  of  eighteen  years  after  this ;  at  her  death, 
the  children  were  all  of  age  ;  Sarah  was  26,  Theodore  28, 
and  Daniel  C.  32 ;  yet  Ann,  it  is  clear,  not  only  never  paid 
to  either  of  them  a  single  dollar,  but  never  so  much  as 
informed  them,  or  either  of  them,  that  she  had  this  mo- 
ney in  her  hands.  The  case  does  not  show  that  any  one, 
except  Sarah  and  Ann,  knew  anything  of  this  deposit 
being  made,  and  the  fact,  if  it  existed,  was  kept  a  pro- 
found secret  by  these  two  women  during  their  whole 
lives ;  for  all  that  Ann  Vail  says  Sarah  told  her  was,  that 
"they  (her  husband  and  his  family)  made  such  a  fuss 
about  the  property,  right  away  as  soon  as  she  was  mar- 
ried, that  she  meant  they  should  never  know  what  she 
had,  or  how  much  she  had."  For  conduct  so  extraordi- 
nary, we  ought  to  be  able  to  soe  some  motive.  Ann  Carle 
must  have  been  acquainted  \dth  business,  for  she  acted 
as  her  brother's  executrix.  Daniel  Carle,  the  brother, 
seems  always  to  have  had  the  confidence  of  both  sisters. 
To  some  extent,  at  least,  he  managed  their  finances,  and 
it  seems  strange,  to  say  the  least,  that  not  a  scrap  of  writ- 
ten evidence  should  have  fceen  left,  not  a  witness  produced 
to  prove  the  fact,  that  even  the  brother  never  should  have 
been  made  a  confident  of  the  fact  of  the  deposit  and  the 
terms  of  the  trust,  nor  either  of  the  cestui  qui  trusts  /  and 
that  knowing,  as  Ann  must  have  known,  if  the  fact  was 
as  stated  in  her  last  sickness,  that  she  was  the  sole  re- 
maining depositary  of  the  secret,  phe  should  not  have  dis- 
closed to  him,  or  to  some  one,  in  explicit  terms  the  fact, 
instead  of  using  language  which  ipigUt  easily  have  been 


MA11CII  TERM,  1856.  571 


Williams  v  Carle. 


misunderstood  and  misinterpreted,  and  the  meaning  of 
which  is  undoubtedly  ambiguous. 

The  complainant  below  made,  I  think,  a  doubtful  case, 
and  these  circumstances  increase  the  doubt.  They  show 
a  state  of  things,  it  seems  to  me,  inconsistent  with  what 
experience  teaches  us  to  expect  in  human  conduct. 

It  has  been  asked  by  the  complainant's  counsel,  if  Ann 
Carle,  in  saying  on  her  death-bed,  "  there  is  $1500,  or 
over,  coming  to  the  children,"  did  not  mean  there  was 
that  sum  of  trust  money  coming  to  the  children  of  Ebe- 
nezer  Williams  out  of  her  estate,  what  did  she  mean.  The 
question  was  well  put.  But  it  was  a  question  for  the  com- 
plainant, and  not  for  the  defendant,  to  answer,  and  to  an- 
swer so  as  to  satisfy  the  conscience  of  the  court.  I  think 
he  has  not  done  so.  I  am,  for  one,  in  doubt  what  she 
meant.  I  am  in  doubt,  for  the  very  reason  that  her  lan- 
guage does  not  inform  me.  I  may  conjecture  :  I  may 
think  the  probabilities  are  in  favor  of  the  construction 
the  complainant  puts  on  her  words ;  but  I  am  unwilling 
to  decide  a  question  of  property — to  take  money  from  one 
party  and  give  it  to  another — on  conjectures  and  proba- 
bilities. The  complainant  claims  this  money  as  a  creditor 
of  Ann  Carle's  estate.  He  has  not,  in  my  judgment,  proved 
his  claim,  and  I  feel  unwilling  to  enforce  a  claim  which  is 
not  proved.  I  may  add,  that  if  the  complainant  is  entitled 
to  recover  at  all,  I  do  not  see  why  he  is  not  entitled  to  the 
$700  and  thirty-four  years'  interest  upon  it.  This  is  his  claim. 
There  is  no  legal  evidence  before  the  court  of  the  payment 
of  interest  on  this  $700  during  Sarah's  life.  Ann  Carle's  say- 
ing the  sum  was  $1500,  or  over,  and  Ann  ValTs  testifying 
that  Daniel  told  her  that  Sarah  sometimes  came  and  got 
the  interest,  and  when  she  didn't,  Ann  went  and  took  it 
to  her,  surely  is  not  evidence  by  which  the  liability  of  the 
estate  can  be  discharged  from  the  payment  of  interest  on 
tliis  $700.  These  witnesses  are  all  testifying  in  favor  of 
their  own  interest. 


5Y2   COURT  OF  ERRORS  AKD  APPEALS. 

Williams  v.  Carle. 

I  am  of  opinion,  on  the  whole,  that  the  decree  should 
be  affirmed. 

ELMER,  J.  It  is  clear  that  the  appellant  is  entitled  to 
no  relief,  unless  there  is  satisfactory  evidence,  from  the 
admissions  of  Daniel  Carle  or  otherwise,  that  Ann  Carle 
had  in  her  hands,  at  the  time  of  her  death,  a  sum  of  mo- 
ney, which  at  some  time  belonged  to  her  sister  Sarah 
Williams,  the  appellant's  wife.  The  declarations  or  acts 
of  Sarah  are  not  competent  evidence  of  this  fact ;  although 
such  declarations  or  acts  might  be  evidence  of  the  fraud 
upon  the  marital  rights  of  her  husband,  if  it  was  other- 
wise established  that  Ann  Carle  was  the  depositary  of  the 
money. 

A  few  days  before  her  death,  Ann  Carle  said  to  her 
brother  Daniel,  who  has  since  administered  on  her  estate, 
these  words :  "  there  is  fifteen  hundred  dollars,  or  over, 
coming  to  the  children."  She  said  nothing,  and  referred 
to  nothing  from  which  it  could  be  ascertained  what  chil- 
dren she  meant.  There  is  no  proof  that  she  ever,  in  any 
way,  acknowledged  that  she  had  received  any  money  or 
other  property  from  or  for  her  sister  Sarah,  or  that  there 
was  any  money  in  her  hands  belonging  to  her  or  her 
children. 

It  appears  that  when  Daniel  Carle  came  to  make  an  in- 
ventory of  Ann's  estate,  as  her  administrator,  he  omitted 
to  include  therein  fifteen  hundred  dollars  of  her  assets, 
and  there  can  be  no  doubt,  I  think,  that  he  did  so  because 
he  believed  that  the  fifteen  hundred  dollars  spoken  of  by 
Ann,  as  coming  to  the  children,  was  money  in  her  hands 
arising  from  funds  left  with  her  by  Sarah  Williams,  for 
the  use  of  her  children.  But  are  the  facts,  that  he  enter- 
tained this  belief,  and  so  acted,  sufficient  to  justify  the 
court  in  decreeing  this  money  to  belong  either  to  the 
husband  or  children  of  the  said  Sarah,  and  thus  take  it 
from  the  next  of  kin  of  Ann.  In  my  opinion,  they  are 
not.  Not  only  has  Daniel  Carle  been  called  on  to  answer 


MARCH  TERM,  1856.  573 


Williams  v.  Carle. 


the  complainant's  bill  under  oath,  but  he  has  been  examined 
as  his  witness,  and  he  states  that  he  never  heard  Ann  Carle 
say  that  she  had  received  any  money  from  her  sister, 
or  that  she  had  any  in  her  hands  belonging  to  her  or 
her  children,  and  that  he  did  not  know,  from  any  com- 
munication of  hers,  what  she  meant  by  the  words  she 
spoke,  as  before  mentioned.  He  states  that  he  had  heard, 
in  the  family,  that  Sarah  proposed  to  place  seven  hun- 
dred dollars  in  the  hands  of  her  sister  Ann,  to  be  held  by 
her  in  trust  for  any  children  Sarah  might  have,  and  that 
Sarah  told  him  so  herself.  It  is  also  proved,  by  Ann  Vail, 
that  Daniel  Carle  told  her  that  some  money  her  aunt  Sally 
Williams  had  left,  amounted  to  fifteen  hundred  dollars, 
and  that  she  came  there  (meaning  evidently  his  house, 
where  Ann  lived),  and  got  the  interest,  and  when  she  did 
not,  Ann  went  and  took  it  herself.  These  circumstances 
account  for  Daniel  Carle's  belief  and  his  conduct.  But  as 
the  complainant's  witness,  he  expressly  testifies  that  he 
knew  nothing  about  the  matter  from  Ann  herself,  nor  is 
there  any  proof  from  any  other  witness  that  he  did.  It 
must  therefore  be  assumed  that  his  belief,  as  to  what  Ann 
meant,  was  derived  wholly  from  information  received  fromi 
other  persons,  so  that  we  have  no  evidence  before  us,  but 
the  fact  that  such  information  was  given  to  him,  and  tliat 
he  believed  it. 

It  was  insisted,  for  the  appellant,  that  it  is  a  sufficient 
ground  for  the  court  to  act  upon  in  this  case  that  the  de- 
fendant sought  to  be  charged  believes  the  fact  to  be  so. 
The  rule  is,  that  the  unqualified  admission  of  the  defendant 
that  he  believes  a  fact  charged  to  be  true,  is  generally  suffi- 
cient to  entitle  the  complainant  to  a  decree.  3  Greenl. 
Eve.  §  282.  But  the  defendant  makes  no  such  admission. 
What  the  defendant  believes,  the  court  will  also  ordinarily 
believe.  But  this  maxim  has  no  application  to  a  case  where 
the  defendant  is  called  as  a  witness,  and  states  the  ground 
of  his  belief.  Had  the  testimony  of  Ann  Vail  and  the 
other  testimony  in  regard  to  the  declarations  and  acts 


574       COURT  OF  ERRORS  AND  APPEALS. 


Williams  v.  Carle. 


of  Daniel  Carle,  as  administrator,  been  before  the  court 
without  any  explanation  of  the  causes  that  produced 
them,  perhaps  we  might  very  fairly  have  inferred  that 
those  declarations  and  acts  were  founded  on  knowledge 

O 

derived  from  Ann  Carle  herself,  whom  he  now  represents. 
But  having  been  himself  made  a  witness  for  the  com- 
plainant, we  are  bound  to  look  at  the  reasons  for  his 
conduct,  or,  in  other  words,  to  take  his  statements  all 
together.  It  thus  appears  that  his  belief  and  conduct  were 
founded,  not  upon  the  acts  or  admissions  of  Ann  Carle, 
but  wholly  upon  information  derived  from  others,  whose 
statements  to  him  would  not  be  competent  evidence  to 
affect  the  interest  of  Ann  Carle  or  of  her  next  of  kin. 
The  stream  can  rise  no  higher  that  its  source.  And  if  it 
be  admitted  to  be  true,  as  was  so  earnestly  insisted  on  the 
argument,  that  this  court  cannot  help  believing  as  Daniel 
Carle  and  the  other  interested  persons  believed,  the  an- 
swer is,  we  have  no  right  to  act  judicially  upon  a  belief 
produced  by  the  declarations  or  acts  of  persons  which  are 
not  competent  by  the  well  established  rules  of  law  to  be 
proved  in  evidence.  The  jury  and  the  judge  may  often 
put  implicit  confidence  in  the  mere  statement  of  one  of 
the  parties,  but  they  must  have  legal  proof  before  they  can 
act. 

On  the  thirteenth  day  of  December,  1853,  it  appears 
that  a  sale  took  place  of  Ann  Carle's  goods  and  chattels, 
when  the  appellant,  the  three  children  of  Sarah  "Williams, 
who  were  all  of  age,  and  most,  but  not  all  of  the  next  of 
kin  of  Ann,  were  present.  Mr.  Annin,  as  the  counsel  of 
the  administrator,  and  at  his  request,  stated  to  them,  that 
thirty-five  years  before,  Sarah  "Williams  had  left  seven 
hundred  dollars  in  the  hands  of  her  sister  Ann,  to  be 
kept  for  her  children,  and  that  the  fund  amounted  to  fif- 
teen hundred  dollars,  or  more,  and  that  this  money  would 
be  put  into  the  estate  of  Ann,  unless  by  the  consent  of 
those  interested  in  her  estate,  he  was  allowed  to  pay  over 
five  hundred  dollars  to  each  of  the  children  of  Sarah 


MARCH  TERM,  1856.  575 


Williams  u.  Carle. 


"Williams.  Most,  or  perhaps  all  of  those  present,  except 
the  appellant  himself,  whose  present  wife  is  one  of  Ann's 
next  of  kin,  appear  to  have  assented  to  this ;  but  nothing 
was  done  to  render  the  consent  of  any  of  them  binding. 
Subsequently  the  appellant  claimed  all  the  money  as 
belonging  rightfully  to  him,  and  the  administrator  de- 
clined paying  him  without  a  suit.  Had  all  the  persons  in- 
terested in  the  estate  been  present  at  the  sale,  and  ex 
pressed  their  full  belief  that  the  representation  made  was 
true,  and  consented  to  the  payment  of  the  money  to  the 
children,  as  proposed,  their  doing  so  would  not  have 
bound  them  in  this  suit.  But  those  who  were  present,  at 
the  most,  did  not  contradict  the  representation  made  as 
to  the  facts,  and  assented  to  the  money  being  paid  to  the 
children,  who  it  seems  afterwards  disclaimed  any  right  to 
it.  None  of  them  agreed  that  the  appellant  should  have 
'if.  Daniel  Carle,  in  one  part  of  his  testimony,  says  that 
U  interested  in  Ann  Carle's  estate  consented  to  the  pay- 
aiant  of  five  hundred  dollars  to  each  of  the  children  ;  but 

18  plain  that  he  refers  to  what  took  place  on  the  day  of 
the  sale,  and  that  he  means  all  who  were  there.  It  was 
urged  that  the  next  of  kin  do  not  now  claim  this  money. 
They  are,  however,  no  parties  to  this  suit,  and  have  never 
relinquished  their  right. 

It  was  also  insisted  that  Daniel  Carle's  admissions  bind 
him,  and  are  sufficient  to  entitle  the  appellant  to  a  decree 
upon  the  ground  that  he  is  defending  this  suit  in  his  own 
right,  the  money  in  dispute  never  having  been  put  into 
the  estate.  But  this  is  certainly  not  so.  He  is  accountable 
for  this  fund,  as  part  of  the  assets  of  Ann  Carle  in  his 
hands,  just  as  truly  as  if  he  had  included  it  in  the  inven- 
tory :  and  any  decree  made  against  him  must  be  against 
him  as  administrator,  and  upon  the  principles,  as  to  costs 
and  otherwise,  usual  in  such  cases.  The  contest  for  this 
money  is  in  truth  between  the  appellant  and  the  next  of 
kin  of  Ann  Carle,  who  are  entitled  to  the  protection  of 


576  COUET  OF  ERRORS  AND  APPEALS. 

Williams  v.  Carle. 

the  court.     I  am  of  the  opinion  that  the  decree  ought  to  ho 
affirmed. 

Decision  reversed  by  the  following  vote : 
For  affirmance — Judges  ELMEB,  POTTS,  RISLEY,  YKEDKN"- 
BITBGH,  WILLS. 

For  reversal — CHIEF  JUSTICE,  Judges  HAINES,  HUYLEE, 
AREOWSMITH,  COENELISON,  RYEKSON,  VALENTINE. 

CITED  in  Stevens  Ex'trx.  v.  Stevens  Eacrs.  9  C.  E.  Gr.  87,  578;  Baldwin  v. 
Van  Vorst,  2  Stock.  577. 


COURT  OF  ERRORS  AND  APPEALS 

JIItfE  TEEM,  1856. 


Between  DANIEL  A.  BALDWIN,  appellant,  and  JOHN 
VORST,  respondent. 

As  a  general  rule,  courts  of  equity  will  not  regard  time  in  the  performance 
of  a  contract.  But  the  parties  may  make  time  the  essence  of  the  contract, 
so  that  the  court  will  not  interfere  to  aid  the  party  who  is  in  default,  un- 
less he  can  offer  some  good  excuse,  as  mistake  or  accident,  for  such  default. 


The  bill  in  this  cause  was  exhibited  to  foreclose  a  mort- 
gage, made  by  Daniel  A.  Baldwin  and  Abby  Ann  his  wife, 
bearing  date  the  first  day  of  October,  eighteen  hundred 
and  fifty-two,  and  delivered  to  John  Van  Vorst,  the  com- 
plainant, and  set  forth  in  the  said  bill  exhibited  in  this 
cause.  The  said  mortgage  was  made  to  him  to  secure 
the  sum  of  money  mentioned  in  a  bond  made  by  said 
Daniel  A.  Baldwin,  and  delivered  to  the  said  John  Van 
Vorst,  the  complainant,  bearing  even  date  with  the  said 
mortgage,  which  said  bond  was  subject  to  the  following 
condition :  that  the  said  Daniel  A.  Baldwin,  his  heirs,  ex- 
ecutors, or  administrators,  should  well  and  truly  pay,  or 
cause  to  be  paid,  to  John  Van  Vorst,  the  complainant,  his 
executors,  administrators,  or  assigns,  the  just  and  full 
sum  of  forty  thousand  dollars,  in  ten  years  from  the  date 
of  the  said  bond,  that  is  to  say,  before  or  on  the  first  day 
of  October,  which  would  be  in  the  year  one  thousand 
eight  hundred  and  sixty-two,  and  the  interest  thereon  to 
be  computed  from  the  date  of  the  said  bond,  to  wit,  Octo- 
ber first,  eighteen  hundred  and  fifty-two,  at  and  after  the 
rate  of  six  per  cent,  per  annum,  and  to  be  paid  half-yearly, 

VOL.  IL  3  o. 


578      COUKT  OF  EKROES  AND  APPEALS. 

Baldwin  v.  Van  Vorst. 

on  the  first  days  of  April  and  October,  then  the  said  obli- 
gation shall  be  void,  otherwise  should  remain  in  full  force 
and  virtue.  And  the  said  bond  was  subject  to  the  further 
condition,  and  it  was  thereby  expressly  agreed,  that  should 
any  default  be  made  in  the  payment  of  the  said  interest,  or 
of  any  part  thereof,  on  any  day  whereon  the  same  is  made 
payable,  as  in  said  bond  expressed,  and  should  the  same  re- 
main unpaid  and  in  arrears  for  thirty  days,  then  and  from 
thenceforth,  after  the  lapse  of  the  said  thirty  days,  the  afore- 
said principal  sum  of  forty  thousand  dollars,  with  all  arrear- 
age of  interest  thereon,  should,  at  the  option  of  the  said 
John  Van  Vorst,  his  executors,  administrators,*  or  assigns, 
become  and  be  due  and  payable  immediately  thereafter, 
although  the  period  limited  for  the  payment  thereof  may 
not  then  have  expired,  anything  therein  before  contained 
to  the  contrary  thereof  in  anywise  notwithstanding.  It  ap- 
peared, by  the  answer  of  Daniel  A.  Baldwin  and  by  the 
proof  in  the  cause,  that  on  the  eighth  day  of  July,  eighteen 
hundred  and  fifty-three,  the  said  Daniel  A.  Baldwin  offered 
and  tendered  to  the  complainant  the  interest  which  had  be. 
come  due  on  the  first  day  of  April,  eighteen  hundred  and 
fifty-three,  and  the  interest  thereon,  which  tender  the  com- 
plainant refused,  and  insisted  upon  the  whole  money  se- 
cured by  the  said  bond. 

The  cause  was  heard  in  the  Court  of  Chancery,  upon  the 
pleadings  and  proofs,  at  the  term  of  February,  1855. 

I.  W.  Scudder,  for  complainant,  Abram  0.  ZdbrisJcie, 
for  defendant,  Daniel  Baldwin. 

At  the  October  term  of  the  court,  the  Chancellor  deli- 
vered his  opinion,  and  on  the  21st  day  of  November,  a 
decree  was  made  in  favor  of  the  complainant.  From  this 
decree  an  appeal  was  taken. 

The  Chancellor  furnished  the  court  with  the  following 
opinion,  as  containing  the  reasons  for  his  decree. 

WILLIAMSON,  C.  Daniel  A.  Baldwin,  one  of  the  defend- 
ants, purchased  of  the  complainant  a  tract  of  land,  lying 


JUNE  TERM,  1856.  579 


Baldwin  v.  Van  Vorst. 


in  Jersey  City  in  the  county  of  Hudson,  for  the  sum  of 
forty-seven  thousand  five  hundred  dollars  ;  seven  thousand 
tive  hundred  dollars  were  paid  in  cash,  and  to  secure  the 
balance  Baldwin  gave  his  bond,  with  a  mortgage  on  the 
premises,  in  the  penal  sum  of  eighty  thousand  dollars, 
with  the  condition,  that  if  the  said  Daniel  A.  Baldwin, 
his  heirs,  executors,  or  administrators,  should  pay  to  the 
complainant,  his  executors,  administrators,  or  assigns,  the 
sum  of  forty  thousand  dollars,  in  ten  years  from  the  date 
of  the  said  bond,  with  interest  at  six  per  cent.,  payable 
half-yearly,  then  the  obligation  was  to  be  void.  To  which 
condition  there  was  annexed  an  agreement,  in  the  follow- 
ing words :  "  And  it  is  hereby  expressly  agreed,  that  should 
any  default  be  made  in  the  payment  of  the  said  interest, 
or  of  any  part  thereof,  or  any  day  whereon  the  same  is 
made  payable,  as  above  expressed,  and  should  the  same 
remain  unpaid  and  in  arrears  for  the  space  of  thirty  days, 
then  and  from  thenceforth,  that  is  to  say  after  the  lapse 
of  thirty  days,  the  aforesaid  principal  sum  of  forty  thou- 
sand dollars,  with  all  arrearage  of  interest  thereon,  shall 
at  the  option  of  the  said  John  Yan  Vorst,  his  executors, 
administrators,  or  assigns,  become  and  be  due  and  paya- 
ble immediately  thereafter,  although  the  period  above 
limited  for  the  payment  thereof  may  not  then  have  ex- 
pired, anything  hereinbefore  contained  to  the  contrary 
thereof  in  anywise  notwithstanding."  The  first  payment 
of  interest  fell  due  on  the  first  day  of  April,  eighteen 
hundred  and  fifty-three,  and  was  unpaid  when  this  bill 
was  filed,  on  the  twelfth  day  of  June  following.  It  ap- 
pears bv  Baldwin's  answer  and  by  the  proof  in  the  cause, 
that  on  the  eighth  day  of  July,  1853,  Baldwin  offered  and 
tendered  to  the  complainant  the  interest  which  had  be- 
come due  on  the  said  first  day  of  April,  and  the  interest 
thereon  and  the  taxable  costs  then  incurred,  which  tender 
the  complainant  refused,  but  insisted  upon  the  whole  mo- 
ney secured  by  the  bond.  "The  only  question  presented  i«, 
\vhcther  the  court  will  relieve  the  complainant  from  the 


580      COURT  OF  EEEOES  AND  APPEALS. 

Baldwin  v.  Van  Vorst. 

payment  of  the  full  amount  secured  by  the  bond  and 
mortgage,  being  forty  thousand  dollars,  upon  the  payment 
of  the  decreed  interest  and  costs. 

The  jurisdiction  of  a  court  of  equity  to  grant  relief  in 
cases  of  forfeitures  and  penalties  for  breaches  of  cove- 
nants and  conditions  is  well  established.  At  the  common 
law  there  is  no  remedy,  and  therefore  it  is  that,  in  cases 
of  penalties  annexed  to  bonds  and  other  instruments  to 
secure  merely  the  payment  of  a  certain  debt,  the  statute 
has  stepped  in,  and  provided  adequate  relief  against  the 
penalty. 

Nor  does  a  court  of  equity,  in  affording  relief,  confine 
itself  to  cases  of  fraud,  mistake,  or  accident,  however 
probable  it  may  be  that  in  the  origin  of  this  exercise  of 
its  jurisdiction,  it  confined  itself  within  such  limits.  But 
it  is  not  imperative  in  the  court  to  grant  relief,  although 
the  party  in  default  is  willing  to  render  all  the  compensa- 
tion in  his  power  to  make  restoration  to  the  injured  party. 

There  is  a  discretion  in  the  court,  regulated,  it  is  true, 
by  well  recognized  principles,  but  exercised  in  its  applica- 
tion of  those  principles  to  each  particular  case  by  its  pecu- 
liar circumstances. 

In  the  case  of  /Sunders  v.  Pope  (12  Ves.  Jr.  289),  Lord 
Erskine  says,  "  there  is  no  branch  of  the  jurisdiction  of 
this  court  more  delicate  than  that  which  goes  to  restrain 
the  exercise  of  a  legal  right.  That  jurisdiction  rests  only 
upon  this  principle,  that  one  party  is  taking  advantage  of 
a  forfeiture,  and  as  a  rigid  exercise  of  the  legal  right 
would  produce  a  hardship,  a  great  loss,  and  injury,  on  the 
one  hand,  arising  from  going  to  the  full  extent  of  the 
right,  while  on  the  other,  the  party  may  have  the  full 
benefit  of  the  contract,  as  originally  framed,  the  court 
will  interfere  where  a  clear  mode  of  compensation  may 
be  discovered."  This  principle  is  everywhere  recognized, 
and  runs  through  all  the  cases.  The  injured  party  must 
be  compensated,  and  must  have  the  full  benefit  of  his 
contract.  If  he  cannot  be  adequately  redressed  for  the 


JUNE  TEEM,  1856.  581 


Baldwin  v.  Van  Vorst. 


injury  which  he  has  sustained,  and  which  has  worked  the 
forfeiture,  or  if,  in  granting  the  relief,  the  court  must  so 
alter  the  contract  between  the  parties  as  to  destroy  one  of 
its  principal  and  essential  features,  and  defeat  the  very 
object  which  both  parties  had  in  view  on  annexing  a  for- 
feiture or  penalty  for  the  breach  of  its  conditions,  then 
the  court  ought  not  to  interfere  between  the  injured  party 
and  his  legal  remedy  ; '  or,  in  other  words,  the  court  ought 
not  to  give  relief  at  the  expense  and  to  the  .injury  of  the 
already  aggrieved  party. 

What  are  the  legal  rights  of  the  complainant  against  the 
enforcement  of  which  the  defendant,  Baldwin,  asks  to  be 
relieved  ? 

Baldwin,  for  a  debt  of  forty  thousand,  which  he  owed 
complainant,  gave  him  his  bond  in  the  penal  sum  of  eighty 
thousand  dollars.  The  condition  of  the  bond  was  the 
common  one,  that  if  the  obligor  paid  the  debt  really  due 
of  forty  thousand  dollars  in  ten  years  from  the  date  of  the 
bond,  and  the  interest  on  the  debt  semi-annually,  then  the 
bond  was  to  be  void. 

The  penalty  was  double  the  amount  of  the  debt  due, 
and  the  object  of  the  penalty  was  to  secure  the  due  fulfil- 
ment of  the  obligation.  If  this  was  all  the  contract,  there 
could  be  no  difficulty  as  to  the  legal  and  equitable  rights 
of  the  parties.  But  there  was  a  further  condition,  in  the 
nature  of  an  agreement,  that  if  the  interest  money  should 
remain  unpaid  for  thirty  days  after  it  was  due  and  paya- 
ble, then  the  principal  money  should  be  due  and  payable. 
The  object  of  this  was  to  secure  the  prompt  payment  of 
the  interest  on  the  debt.  The  first  interest  money  that  be- 
came due  was  unpaid,  and  the  thirty  days  were  permitted 
to  expire.  The  complainant  was  compelled  to  file  this  bill 
to  enforce  the  payment  of  his  debt.  He  is  entitled,  by  the 
terms  of  his  agreement,  to  have  a  decree  for  the  full 
amount  of  his  debt.  He  has  forfeited  the  credit  of  ten 
years,  which  he  was  to  have  on  condition  of  prompt  pay- 
ment. If  the  court  relieves  the  defendant,  it  destroys  the 

3c* 


582    COUET  OF  EKROES  AND  APPEALS. 

Baldwin  v.  Van  Vorst. 

very  object  of  the  agreement  to  secure  prompt  payment. 
The  parties  have  made  this  the  essence  of  their  contract ; 
and  when  the  debt  is  as  large  as  this  one  is,  prompt  pay- 
ment of  the  interest  is  a  matter  of  great  consequence.  It. 
is  true,  as  was  argued,  the  court  might  in  this  case  give 
compensation.  Perhaps  interest  upon  interest  might  be  a 
fair  compensation,  as  near  as  it  may  be  estimated.  But 
this  mode  of  redress  deprives  the  party  of  the  full  benefit 
of  his  contract.  It  will  not  secure  prompt  payment  in 
future ;  and  if  at  the  end  of  another  six  months  another 
default  is  made,  the  defendant  may  have  the  same  relief, 
and  thus  obtain  a  credit  from  time  to  time  upon  terms 
entirely  different  from  the  agreement  between  the  parties. 
If  the  court  grant  this  relief,  the  very  object  of  the 
agreement  will  be  defeated,  and  this  court  virtually  de- 
clare that  parties  shall  not  make  an  agreement  by  which 
the  length  of  credit  shall  depend  upon  the  prompt  pay- 
ment of  the  interest,  as  it  becomes  due.  The  agreement 
is  a  reasonable  one.  A.  says  to  B.,  you  may  have  my  mo- 
ney for  ten  years,  if  you  will  pay  the  interest  promptly  ; 
if  you  make  default  in  this  respect,  you  must  pay  me  the 
principal.  It  cannot  be  said  to  be  a  rigid  exercise  of  a 
legal  right  for  A.  to  refuse  to  extend  the  credit  when  he 
finds  he  is  defeated  in  his  just  expectation  of  receiving 
his  interest  money  promptly.  In  2  Story's  Eq.  it  is  said, 
"  the  true  foundation  of  the  relief  in  equity  in  all  these 
cases  is,  that  as  the  penalty  is  designed  as  a  mere  security, 
if  the  party  obtains  his  money  he  gets  all  that  he  expected, 
and  all  that  in  justice  he  is  entitled  to."  In  this  case  the 
penalty  is  not  designed  as  a  mere  security,  but  its  very 
object  is  to  secure  prompt  payment.  If  the  party  does  not 
get  this  he  does  not  get  what  he  expects,  or  all  that  in 
justice  he  is  entitled  to.  If  this  court  could  give  such  re- 
lief as  would  secure  the  faithful  performance  of  the  agree- 
ment in  future  there  might  be  a  propriety  in  its  inter-  • 
ference.  If  the  court  could  make  a  decree  that  the  com- 
plainant should  be  relieved  in  the  present  instance  upon 


JUNE  TEEM,  1856.  583 


Baldwin  v.  Van  Vorst. 


the  terms,  that  for  any  further  delinquency  or  forfeiture 
the  further  credit  should  be  enforced,  this  would  seem  just ; 
and  yet,  after  all,  it  would  be  but  putting  in  the  shape  of  a 
decree  of  this  court,  the  very  agreement  which  the  parties 
have  made,  and  which  the  defendant  now  says  is  a  rigid  ex- 
ercise of  its  legal  right  to  enforce. 

I  think  the  remarks  of  the  Chancellor,  in  Benedict  v. 
Lynch  (1  J.  0.  R.  376),  very  applicable  to  a  case  like  this. 
The  notion  that  seems  too  much  to  prevail  (and  of  which 
the  facts  in  the  present  case  furnished  an  example),  that  a 
party  may  be  utterly  regardless  of  his  stipulated  payments, 
and  that  a  court  of  Chancery  will  almost  at  any  time  relieve 
him  from  the  penalty  of  his  gross  negligence,  is  very  injuri- 
ous, to  good  morals,  to  a  lively  sense  of  obligation,  to 
the  sanctity  of  contracts,  and  to  the  character  of  this 
court.  It  wpuld  be  against  all  my  impressions  of  the  prin- 
ciples of  equity  to  help  those  who  show  no  equitable  title  to 
relief. 

As  a  general  rule,  courts  of  equity  will  not  regard  time  in 
the  performance  of  a  contract.  But* the  parties  may  make 
time  the  essence  of  the  contract,  so  that  the  court  will  not 
interfere  to  aid  the  party  who  is  in  default,  unless  he  can 
offer  some  good  excuse,  as  mistake  or  accident,  for  such  de- 
fault. Benedict  v.  Lynch  (1  J.  G.  JK.  370),  and  cases  there 
referred  to ;  or  where  the  character  of  the  contract  is  such 
that  by  the  payment  of  money,  or  otherwise,  it  has  been 
partly  fulfilled,  and  the  default  is  made  under  such  circum- 
stances as  to  render  it  unconscionable  to  insist  upon  the  for- 
feiture. Wills  v.  Smith,  7  Paige  22. 

Edgerton  v.  Peckhain  (11  Paige  352),  was  a  case  where 
there  was  an  agreement  for  the  sale  of  a  lot  of  land  for 
$300,  one-third  to  be  paid  down,  and  the  residue  in  one 
and  two  years,  with  interest.  There  was  a  provision  in 
the  agreement,  that  if  the  purchaser  should  make  default 
in  either  of  the  payments,  the  vendor  should  be  discharged 
from  the  agreement,  and  the  purchaser  forfeit  all  the  pre- 
vious payments.  The  first  two  instalments  were  paid  at 


584      COURT  OF  ERRORS  AND  APPEALS. 

%  Baldwin  v.  Van  Vorst. 

the  specified  time,  and  the  vendor  signed  the  agreement  to 
the  complainant,  who  made  default  in  the  last  payment. 
He  was  not  called  upon  by  the  vendor  to  fulfil  the  contract, 
and  in  a  few  days  after  the  default  he  tendered  the  money 
and  demanded  a  deed,  which  the  vendor  refused  to  give, 
and  insisted  upon  the  forfeiture.  But  the  court  relieved 
against  the  forfeiture.  The  propriety  of  the  court's  grant- 
ing relief  in  a  case  like  that,  commends  itself  to  our 
natural  sense  of  what  is  just  and  right.  To  insist  upon  a 
forfeiture  under  such  circumstances  was  an  act  of  great 
hardship  and  oppression  ;  it  was  against  good  conscience  to 
enforce  the  agreement  as  the  parties  then  stood.  There 
is  a  large  number  of  cases  referred  to  and  commented 
upon  by  the  Yice  Chancellor,  in  Edgerion  v.  Peckham^ 
illustrating  the  principles  which  govern  the  court  in  exer- 
cising jurisdiction  in  reference  to  contracts,  where  time  is 
any  way  material  to  their  performance.  But  I  cannot  in 
this  case  see  any  ground  for  equitable  relief.  The  agree- 
ment itself  is  a  reasonable  one.  Time  is  the  essence  of 
the  contract,  and  there  was  no  hardship  in  making  it  so. 
The  agreement  is  altogether  executory,  and  no  act  has  been 
done,  by  either  party,  to  change  the  position  of  the  parties, 
so  as  to  make  it  oppressive  in  the  complainant  to  call 
for  the  fulfilment  of  the  agreement.  The  defendant  offers 
no  excuse  for  his  default,  not  even  that  of  negligence, 
or  of  his  inability  to  raise  the  money  at  the  day.  From 
anything  appearing  to  the  contrary,  the  default  was  wilful 
and  without  excuse,  and  intended  to  harass  and  incon- 
venience the  complainant  by  withholding  from  him  his 
interest  money.  The  defendant  made  no  amends  for  his 
default  until  he  was  compelled  to  do  so  by  the  complain- 
ant's exhibiting  his  bill  in  this  court.  If  I  relieve  the 
defendant  in  this  case,  I  must  take  the  ground,  that  a 
person  cannot  make  a  loan  upon  condition  that  the  credit 
shall  be  a  long  or  a  short  one,  depending  upon  the  prompt- 
ness of  the  borrower's  paying  the  interest ;  and  that  if  the 
agreement  is  that  the  borrower  shall  have  ten  years'  credit 


JUNE  TEEM,  1856.  585 


Baldwin  v.  Van  Vorst. 


if  he  pays  his  interest  promptly,  but  a. shorter  time  if  he 
makes  default,  though  he  makes  default  this  court  will 
give  him  the  long  credit  in  spite  of  the  agreement.  See 
3  Powell  on  Mortgages  902 ;  Stanhope  v.  Manners,  2  Eden 
197 ;  Halifax  v.  Higgins,  2  Yes.  134 ;  Proctor  v.  Cooper, 
Vann.  397 ;  Burton  v.  Slattery,  3  B.  C.  P.  68  ;  Sparlcs  v. 
Liverpool  Water  Works,  13  Ves.  433. 

There  is  a  class  of  cases  in  reference  to  leases  where 
the  court  has  interposed  to  prevent  a  forfeiture  where  a 
right  of  entry  is  stipulated  in  the  lease  in  case  of  the  non- 
payment of  the  rent  at  the  regular  days  of  payment.  But 
in  those  cases  the  court  interferes  on  the  ground,  that  the 
right  of  entry  is  intended  as  a  mere  security  for  the  pay- 
ment of  rent,  and  that  when  the  rent  is  paid  the  end  is  ob- 
tained. Story's  Eq.  N.  S.  1315  ;  Wadman  v.  Calcraft  (10 
Ves.  Jr.  69) ;  Sanders  v.  Pope,  (12  Ves.  284)  ;  Bracebridge 
v.  Buckley  (2  Prior's  Ex.  It.  216). 

As  I  have  before  remarked  in  this  case,  the  penalty  of 
$80,000  was  intended  to  secure  the  payment  of  the  prin- 
cipal money.  But  this  additional  agreement  was  intended 
for  another  purpose,  to  secure  the  prompt  payment  of  the 
interest  to  grow  due  on  the  debt.  If  it  fails  to  accomplish 
this,  its  only  aim  and  object  are  frustrated ;  the  intention  of 
the  parties  is  defeated. 

I  can  see  no  principle  of  equity  to  justify  the  court's 
interference  to  give  the  defendant  relief  against  the  for- 
feiture. The  complainant  is  entitled  to  a  decree  for  his 
principal  money  and  interest. 

The  appeal  was  argued  by 

4 

Zdbriskie,  for  appellant. 
Gilchrist,  for  respondent. 

The  decision  of  the  Chancellor  was  affirmed  by  the  fol- 
lowing vote : 


586      COTJKT  OF  EKKOES  AOT)  APPEALS. 

Baldwin  v.  Van  Vorst. 

For  affirmance — CHIEF  JUSTICE,  Judges  ARROWSMITH, 
HAINES,  POTTS,  YALENTINE,  CORNELISCXN,  HUTLEE,  RISLEY, 
WILLS,  OGDEN,  RYERSON. 

For  reversal — None. 


CITED  in  Martin  v.  Melville,  3  Stock.  233 ;  De  Groot  v.  McCotter,  4  C.  E. 
Or.  533;  Spring  v.  Fisk,  6  O.  E.  Gr.  179;  Origgs  v.  Landis,  6  C.  E.  Or. 
515 


INDEX. 


ADEMPTION. 


The  intention  of  the  testator  is  the  es- 
sence of  ademption  of  a  legacy. 
"When  an  advancement  is  relied 
upon  as  an  ademption,  two  facts 
in  ist  be  established,  the  advance- 
ment, and  the  intention  of  the  tes- 
tator that  it  should  be  in  satisfac- 
tion, or  a  substitute  for  the  bequest. 
Sims  v.  Sims,  153 


AGREEMENT. 


See  HUSBA.ICD  AND  "Wira. 


Parol  evidence  is  not  admissible  to  ex- 
plain a  written  agreement  when 
there  is  no  ambiguity  apparent  on 
tha  face  of  it.  Speer  v.  Whitjleld 
et  al.,  10  r 

M.  D.  W.,  A.  P.  W.,  C.  W.,  and  M. 
W.  entered  into  an  agreement  with 
O.  D.  A.  to  convey  to  him  a  tract  of 
Ian  I  for  $400.  Q.  D.  A.  paid  down 
$150  on  the  agreement,  and  was  to 
have  a  deed  on  the  payment  of  the 
balance  of  the  money.  Q.  D.  A.  as- 
signed the  agreement  to  J.  C. ,  as  so- 
curity  for  the  payment  of  a  note  of 
$150.  J.  C.  diei,  leaving  several 
children  her  heirs  at  law,  and  a  will, 
with  one  J.  H.  executor.  The  heirs 
at  law  of  J.  C.  assigned  the  agree- 
ment, for  the  consideration  of  $30.), 
to  C.  W. ,  one  of  the  original  parties 
to  the  agreement*  C.  W.  then  as- 
signed the  agreement  to  the  com- 
plainant M.  D.  W.,  A.  P.  W.,  and 
C.  W.,  three  of  the  parties  to  the 
original  agreement,  died,  leaving 
M.  W.,  another  party  to  the  agree- 
ment, surviving.  The  bill  is  filed 
against  M.  W.  and  W.  P.  8.,  the 
exector  of  C.  W.,  for  a  specific  per- 
formance. 

The  heirs  at  law  of  J.  C.  had  no  right 


to  assign  the  agreement.  She  held 
it  merely  as  a  mortgage  security, 
and  her  interest  in  it  passed,  at  her 
death,  to  her  executor,  and  not  to 
her  heirs  at  law.  The  bill  does  not 
show  that  the  heirs  of  J.  C.  could 
make  any  title  to  the  agreement. 

M.  W.  and  A.  P.  W.,  original  parties 
to  the  agreement,  being  dead,  their 
heirs  at  law  should  be  parties  to  the 
suit. 

G.  D.  A.,  the  party  of  the  second  part 
to  the  original  agreement,  being 
dead,  his  personal  representat.ive 
should  be  a  party  to  the  suit.  G.  D. 
A.,  having  assigned  the  agreement 
only  as  collateral  for  a  debt,  re- 
tained an  interest  in  the  agreement. 
Miller  v.  Henderson,  320 

Wh.ere  the  testator  directs  a  sale  of 
land  to  be  made,  and  the  proceeds  to 
be  divided  among  his  heirs  at  law, 
they  may  elect  to  take  the  lands, 
and  a  court  of  equity  will  secure  to 
them  the  benefit  of  that  election. 
So  where  all  interested  had  entered 
into  an  agreement  to  divide  the  real 
estate  itself  in  such  proportions  as 
they  deemed  just  in  reference  to 
their  respective  interest  in  the  pro- 
ceeds, and  it  appeared  that  the  par- 
ties had  lived  ten  years  under  the 
agreement;  that  the  ownership  of 
the  property  had  become  so  changed 
that  the  agreement  could  not  be 
disturbed  without  grossly  violating 
the  rights  of  some  of  the  parties  to 
it,  ancT  fraudulently  depriving  them 
of  their  property ;  that  the  executors 
had  acquiesced  in  it,  and  induced 
such  a  state  of  things  as  made  it  a 
fraud  in  them  to  disturb  it,  the 
court  said,  that  the  plea  that  such 
an  agreement  was  illegal  because 
one  or  the  parties  was  a  feme  covert, 
came  with  an  ill  grace  as  a  defence 
on  the  part  of  the  executors,  who 
had  subsequently  sold  a  portion  of 
the  property  released  under  the 
agreement.  Scudder  v.  Stout,  377 

At  the  time  of  the  execution  of  the 
agreement,  the  husband  of  one  of 
the  parties  had  been  absent  six  yean 


588 


INDEX. 


and  upwards.  The  report  was  that 
he  was  dead:  it  was  so  considered 
by  the  family.  When  the  executors 
sold  the  property,  he  had  been  ab- 
sent sixteen  years,  and  the  party 
was  married  again.  At  that  time 
no  court  of  law  or  equity  would 
have  disturbed  the  agreement  on 
the  ground  alleged.  ib 

But  although  the  executors  acted  in 
bad  faith,  and  in  violation  of  the 
rights  of  those  interested  in  the  will 
of  the  testator,  it  does  not  follow, 
as  a  consequence  of  their  fraud, 
that  a  sale  made  by  them  is  void, 
they  being  authorized  by  the  will 
to  sell  the  land,  and  there  being  no 
proof  that  the  grantees  were  cog- 
nizant of  the  agreement.  ib 

Where  the  purchase  money  of  such 
sale  had  been  wrongfully  paid  over 
to  one  not  entitled  to  if,  the  court 
held  complainants  entitled  to  an  ac- 
count, and  ordered  the  money 
brought  into  court.  ib 

Although  the  business  he  carried  on  in 
the  name  of  one  alone,  and  neither 
suppose  that  they  are  partners,  al- 
though they  did  not  intend  to  be- 
come partners,  and.  as  between 
themselves,  were  not  partners,  yet 
the  law  may  hold  them  liable  as 
partners  as  to  third  persons  upon 
an  agreement  to  share  in  the  profits. 
Sheridan  v.  Medara,  4t>9 

As  a  general  rule,  courts  of  equity 
will  not  regard  time  in  the  perform- 
ance of  a  contract.  But  the  parties 
may  make  time  the  essence  of  the 
contract,  so  that  the  court  will  not 
interfere  to  aid  the  party  who  is  in 
default,  unless  he  can  offer  some 
good  excuse,  as  mistake  or  accident, 
for  such  default.  Baldwin  v.  Van 
Vorst.  577 


ALIMONY. 

The  Court  of  Chancery  has  no  power 
to  decree  alimony,  except  as  inci- 
dent to  divorce,  except  in  the  single 
case  provided  for  by  the  10th  sec- 
tion of  the  statute.  Yule  v.  Yule, 

138 

Upon  a  bill  filed  for  alimony  only, 
the  court  may  make  an  order  for  a 
ne  exeat  before  alimony  is  fixed,  ib 


AMBIGUITY. 

When  parol  testimony  admissible  to 
dispel  a  doubt  upon  the  tnie  sense 
ana  meaning  of  words.  Hartwell 
v.  Camman,  128 


Parol  testimony  sometimes  admitted 
ex  necessitate,  and  when  the  ambi- 
guity in  an  instrument  is  created  by 
extrinsic  evidence,  it  may  be  re- 
moved by  the  same.  t'6 


ASSIGNMENT. 


A  judgment  creditor  may  assign  a 
part  of  his  interest  in  a  judgment. 
If  he  assigns  the  debt,  a  court  of 
equity  will  secure  to  the  assignee 
the  benefit  of  the  judgment.  Sneer 
v.  Whitfield  et  al.,  107 

An  assignee  of  a  bond  takes  it  subject 
to  all  the  equities  which  existed  at 
the  time  of  the  assignment  between 
the  obligor  and  the  obligee. 

But  if  A.  executes  to  B.  his  bond,  and 
takes,  as  a  consideration  for  it,  B's 
prommissory  note  at  ninety  days,  if 
B.  assigns  the  bond  to  C.  before  the 
note  becomes  due,  A.  cannot  resist 
the  payment  of  his  bond  in  the  as- 
signee's hand  on  the  ground  of  a 
failure  of  consideration.  Cornish 
v.  Bri/an.  146 

M.  D.  W.,  A.  P.  W.,  C.  W.,  and  M. 
W.  entered  into  an  agreement  with 
G.  D.  A.  to  convey  to-  him  a  tract 
of  land  for  $400.  G.  D.  A.  paid 
down  $150  on  the  agreement,  and 
was  to  have  a  deed  on  the  payment 
of  the  balance  of  the  money.  G.  D. 
A.  assigned  the  agreement  to  J.  C., 
as  security  for  the  payment  of  a 
note  of  $150.  J.  C.  died,  leav- 
ing several  children  her  heirs  at 
law,  and  a  will,  with  one  J.  H.  ex- 
ecutor. The  heirs  at  law  of  J.  C. 
assigned  the  agreement  for  the  con- 
sideration of  $200,  to  C.  W.,  one  of 
the  original  parties  to  the  agree- 
ment. C.  W.  then  assigned  the 
agreement  to  the  complainant.  M. 
D.  W..  A.  P.  W.,  and  C.  W.,  three 
of  the  parties  to  the  original  agree- 
ment, died  leaving  M.  W.,  another 
party  to  the  agreement,  surviving. 
The  "bill  is  filed  against  M.  W.  and 
W.  P.  S.,  the  executor  of  C.  W.  for 
a  specific  performance. 

The  heirs  at  laiv  of  J.  C.  had  no  right 
to  assign  the  agreement.  She  held 
it  merely  as  a  mortgage  security, 
and  her  interest  in  it  passed,  at  her 
death,  to  her  executor,  and  not  to 
her  heirs  at  law.  The  bill  does  not 
show  that  the  heirs  of  J.  C.  could 
make  any  title  to  the  agreement. 
Miller  v.  Henderson,  o20 

A  n  assignment  may  be  fraudulent  al- 
though it  was  marie  for  a  valuable 
consideration.  If  the  purchase  was 


INDEX. 


589 


not  bona  fide  but  was  made  to  de-  !     prommissory  note  at  ninety  days,  if 
fraud  creditors,  the  asssignment  is        **  ooc^n™,*,  *t.^  i,^«  ^  *~  /-«  i — * —  ^i_ . 
not  valid,  although  an  adequate  con 
sideration  was  given.     Wilson   v 
Groj/,323. 


AWARD. 

To  justify  this  court's  interfering  with 
an  award,  it  must  be  shown  there 
was  fraud,  mistake,  or  accident.  The 
accident  must  be  such  as  to  have 
deprived  the  party  of  the  benefit  o; 
a  hearing  or  of  some,  substantia 
right ;  the  fraud  must  amount  to 
corruption,  partiality,  or  gross  mis- 
behavior in  the  arbitrators  ;  and 
the  mistake,  if  in  law,  must  be  a 
plain  one,  upon  some  material  point 
affecting  the  case.  If  a  matter  of 
fact,  it  must,  in  general,  be  such  as 
t«e  arbitrator  himself  would  admit, 
such  as  a  miscalculation  in  an  ac- 
count, and  the  like.  Veghte  v.  Hoag- 
land.  45 

Where  the  bill  stated  the  "  awird  was 
not  for  damages  which  in  the  opin- 
ion of  the  said  arbitrators  had  ac- 
crued subsequent  to  the  said  twenty- 
second  day  of  October,  in  the  year 
1S47,"  and"  which  alone  were  submit- 
ted to  them  to  be  arbitrated,  the 
testimony  of  the  arbitrators  them- 
selves was  held  to  be  conclusive 
upon  it.  ib 

A  complainant  cannot  invoke  the  aid 
of  a  court  of  equity  on  the  ground 
that  an  award  was  illegal,  because 
not  in  pursuance  of  the  submission. 
When  it  appears  by  the  bill  itself, 
that  the  parties  mutually  agreed  to 
the  course  pursued  by  the  arbitra- 
tors in  the  matter  complained  of,  it 
would  be  against  equity  and  good 
conscience  to  permit  the  complain- 
ant thus  to  repudiate  his  own  acts,  ib 


BOND. 


This  court  has  the  power  to  order  a 
bond  or  other  instrument  to  be  de- 
.  livered  up  to  be  cancelled,  and  the 
court  may  properly  exercise  the 
power,  although  the  grounds  upon 
which  the  jurisdiction  of  the  court 
is  invoked  may  constitute  a  valid 
defence  at  law'  against  the  writing. 
Cornish  v.  Bryan.  146 

An  assignee  of  a  bond,  takes  it  sub- 
ject to  all  the  equities  which  existed 
at  the  time  of  the  assignment  be- 
tween the  obligor  and  obligee.  ib 

But  if  A.  executes  to  B.  his  bond,  and 
takes  as  a  consideration  for  it,  B's 

VOL.  u  3 


B.  assigns  the  bond  to  C.  before  the 
note  becomes  due.  A.  cannot  resist 
the  payment  of  his  bond  in  the  as- 
signee's hand  on  the  ground  of  a 
failure  of  consideration.  ib 


CONSTITUTIONAL   LAW. 


The  supplement  to  the  Newark  and 
Bloomiield  Railroad  Company  does 
not  contravene  the  article  of  the 
constitution  of  this  state,  which  de- 
clares that  every  law  shall  embrace 
but  one  object,  and  that  shall  be  ex- 
pressed in  the  title,  as  the  objects  in 
the  statute  are  part  of  the  same  en- 
terprise, and  have  a  proper  relation 
to  one  another.  Giffoiil  v.  N.  J. 
Railroad  Co.  171 

The  legislature,  on  the  17th  of  March, 
1854,  passed  an  act  declaring  Little 
Timber  creek  to  be  a  public  high- 
way, in  all  respects  as  fully  as  it  was 
before  the  said  creek  was  dammed 
at  its  mouth  ;  and  the  township  com- 
mittee is  authorized  and  required,  at 
the  expense  of  the  township,  to  re- 
move the  dam,  and  thereby  open  the 
navigation  of  the  creek.  The  bill 
was  filed  to  enjoin  the  township 
committee  from  discharging  the 
duty  imposed  upon  them  by  this  act. 
Held,  that  the  legislature  had  the 
right  to  authorize  the  obstruction  of 
the  creek,  there  being  nothing  in  the 
case  to  show  that  its  navigation  was 
demanded  by  the  public  interest. 
Glover  v.  Powxll.  211 

't  does  not  follow  that  any  creek,  or 
rivulet  in  which  the  tide  ebbs  and 
flows,  and  which  may  be  navigated 
at  certain  tides  by  small  boats?  is  to 
be  dignified  with  the  appellation  of 
an  arm  of  the  sea,  or  navigable 
river,  and,  as  such,  is  beyond  the  ju- 
risdiction or  control  of  the  legisla- 
ture, except  as  a  public  high  way.  t&  • 
rho  act  of  the  legislature,  passed  the- 
17th  March,  1854,  which  authorizes 
and  requires  the  township  commit- 
tee to  remove  the  dam,  is  in  violation 
of  the  constitution  of  the  United 
States,  which  declares  that  no  state 
shall  pass  any  bill  of  attainder,  •-.>•- 
paste  facto  law,  or  law  impairing 
the  obligation  of  contracts.  It  was 
a  virtual  repeal  of  the  act  of  1760, 
under  the  pro  visions  of  which  rights 
had  bt»como  vested,  and  valuable 
property  had  been  acquired.  It  is  in 
violation  of  good  faith.  It  impair* 
the  obligation  of  a  contract.  16 


590 


IKDEX. 


The  act  of  1854  was  also  repugnant  to 
the  constitution  of  the  state  of  New 
Jersey,  as  taking  private  property 
for  public  use  without  just  compen- 
sation, ib 

A  partial  destruction  or  diminution  of 
value  is  the  taking  of  private  pro- 
perty, ib 

The  city  of  Newark  has  authority,  by 
its  charter,  to  grade  and  regulate  its 
public  highways;  the  owners  of  pro- 
perty adjacent  to  such  improve- 
ments have  no  legal  claim  upon  the 
city  for  incidental  damages. 

In  the  exercise  of  its  chartered  pow- 
ers, the  city  has  no  right  to  occupy 
or  appropriate  private  property 
without  making  compensation,  nor 
would  its  authorities  be  permitted 
to  do  any  wanton  or  unnecessary 
damage,  direct  or  incidental,  to  any 
individual's  property.  But  the  mere 
discretion  of  the  city  authorities 
cannot  be  interfered  with,  or  in  any 
manner  controlled  by  this  court,  so 
long  as  that  discretion  is  exercised 
within  its  appropriate  and  legal  lim- 
its. Plumb  et  al.  v.  The  Morris 
Canal  and  Banking  Co.  et.  al.,  256 

The  authorit y  to  use  a  publif  highway 
for  the  purposes  of  a  railroad,  ro- 
taining  the  use  of  such  highway  for 
all  ordinary  purposes,  subject  only 
to  the  inconvenience  of  the  railroad, 
is  not  such  taking  of  private  pro- 
perty from  the  owner  of  the  fee  of 
the  adjacent  lands  as  is  contemplat- 
ed by  the  provision  of  the  constitu- 
tion, which  provides  that  individu- 
als or  private  corporations  shall  not 
be  authorized  to  take  private  pro- 
perty for  public  use  without  just 
compensation  first  made  to  the 
owners.  The  easement  of  the  high- 
way is  in  the  public,  although  the 
fee"  is  technically  in  the  adjacent 
owner.  It  is  the  easement  only 
which  is  appropriated,  and  no  right 
or  title  of  the  owner  interfered  with. 
If  the  legislature  authorizes  the 
company  to  take  the  highway,  and 
appropriate  it  to  its  own  use,  by  de- 
stroying the  ordinary  and  legal 
right  of  the  public  to  use  it  as  a 
highway,  then  compensation  must 
be  provided ;  because  when  the 
rights  of  the  public  in  it  ceases,  then 
the  use  of  it  reverts  to  the  person 
who  holds  the  fee  in  the  land.  Then 
the  legislature  authorizes  to  be  taken 
something  which  belongs  to  the  land 
owners,  to  wit,  the  use  of  the  land. 

It  follows  further,  that  an  adjacent 
land  owner  cannot  maintain  an  ac- 


tion at  law  for  consequential  dama- 
ges, unless  he  can  show  a  negligent* 
exercise  by  the  company  of  their 
legal  rights;  because  no  action  tit 
laiv  will  lie  for  a  consequential  in- 
jury necessarily  resulting  from  the 
exercise  of  a  legal  right  under 
legislative^  authority.  Morris  and 
Essex  Railroad  v.  Newark,  352 


CONDITION. 
SEE  DEED. 

COVENANT. 
SEE  DEED. 

CORPORATION. 

The  object  of  "the  act  to  prevent 
frauds  by  incorporated  companies  " 
is  to  secure  to  the  creditors  of  such 
institutions  an  equal  distribution  of 
its  assets.  This  is  the  primary  object 
of  the  statute.  Any  act  done  with 
the  view,  and  for  the  purpose  of  de- 
feating this  object,  is  a  fraud  upon 
the  act,  and  is  illegal. 

Our  courts  have  always  recognised  the 
object  and  provisions  of  the  act  in 
question  and  the  bankrupt  laws  to 
be  essentially  the  same  ;  and  if  it  is 
to  be  considered  as  partaking  of  the 
character  of  a  bankrupt  law,  it  is 
proper  to  apply  to  it  the  general 
rules  that  govern  the  system,  where 
it  is  in  use.  Receivers  of  Peoples 
Bank  v.  Paterson  Savings  Bank,  13 

Where  a  bank  has  become  so  hopeless- 
ly insolvent  that  the  directors  are 
forced  to  the  conclusion  that  it  is 
incumbent  upon  them  at  once  to 
close  the  doors  of  the  bank,  and 
abandon  the  objects  for  which  the 
institution  was  incorporated,  the 
cashier  may  lawfully  meet  all  de- 
mands made  upon  it,  up  to  the 
moment  the  bank  suspends  pay- 
ment, and  all  such  payments  are 
valid.  But  he  cannot,  while  he  is 
dealing  out  to  importunate  creditors 
their  legal  demands  with  one  hand, 
•with  the  other,  place  the  assets  of 
the  bank  in  his  pocket  for  absent 
friends  and  favorites.  The  diligent 
creditor  may  acquire  rights  which 
the  law  will  not  disturb,  but  there 
is  a  distinction  between  a  voluntary 
preference  of  a  creditor  by  the 


INDEX. 


591 


debtor,  and  a  payment  forced  from 
him  by  an  importunate  creditor. 

So  where  one  of  the  directors  of  the 
bank  puts  a  note  in  his  pocket  to  de- 
liver to  a  creditor,  for  the  purpose 
of  giving  him  a  preference,  to  which 
he  was  not  entitled  by  any  diligence 
of  his  own,  it  was  held  not  to  be  a 
payment  in  the  usual  course  of 
dealing.  w 

The  assignment  and  transfer  of  prom- 
issory notes,  in  contemplation  of  the 
insolvency  of  an  incorporated  com- 
pany, is  declared  by  the  act  to  be 
utterly  null  and  void  as  against 
creditors,  and  where  a  voluntary 
preference  is  given  to  a  creditor, 
for  the  sole  purpose  of  giving  him 
an  advantage  over  other  creditors, 
and  under  such  circumstances  that 
it  cannot  be  said  to  be  made  in  the 
ordinary  course  of  business,  it  is  in 
direct  violation  of  the  second  section 
of  the  act.  ib 

This  court  will  not  assume  a  jurisdic- 
diction  to  try  the  lawful  election  of 
officers  and  the  validity  of  ordinan- 
ces of  corporate  bodies  upon  the 
mere  allegation  that  the  complain- 
ants are  holders  of  real  estate  in  a 
city,  and  that  the  value  of  their 
property  is  directly  involved  in  pro- 
ceedings which  are  going  on  and 
threatened,  and  that  the  prooceed- 
ings  are  useless,  and  will  tend  to 
depreciate  their  property  in  value. 
Kearney  v.  Andrews.  70 

The  power  of  filling  vacancies  being 
incident  to  a  corporation,  it  has  the 
right,  by  its  by-laws,  to  prescribe 
the  manner  in  which  such  vacancy 
shall  be  filled,  provided  it  is  not  in- 
consistent with  the  design  of  the 
charter.  ib 

The  city  council  of  Perth  Amboy  have 
no  right  to  elect  its  own  members  ; 
the  law  declares  that  the  members 
constituting  the  city  council  shall 
be  elected  bv  the  electors  of  the  city 
by  ballot.  The  city  council  cannot 
confer  this  authority  elsewhere,  nor 
can  they  usurp  it  themselves.  ifr 

The  provisions  in  the  act  to  incorpor- 
ate the  city  of  Perth  Amboy,  that 
the  oaths  of  office  should  be  taken 
and  subscribed  within  ten  days  after 
the  election,  is  directory  only,  and 
an  alderman  and  members*  duly 
elected  did  not  forfeit  their  offices 
by  their  neglect  of  being  sworn  in 
within  ten  days  after  their  elec- 
tion, -ib 

The  citv  of  Newark  has  authority,  by 
its  charter,  to  grade  and  regulate 
its  public  highways;  the  owners  of 
propeity  adjacent  to  such  improve- 


ment have  no  legal  claim  upon  the 
city  for  incidental  damages. 

In  the  exercise  of  its  chartered  powers, 
the  city  has  no  right  to  occupy  or 
appropriate  private  property  witk- 
put  making  compensation,  nor  would 
its  authonties  be  permitted  to  do 
any  wanton  or  unnecessary  damage, 
direct  or  incidental,  to  any  indi- 
vidual's property.  But  the  mere 
discretion  of  the  citv  authorities 
cannot  be  interfered  with,  or  in  any 
manner  controlled  by  this  court,  as 
long  as  that  discretion  is  exercised 
within  its  appropriate  and  legal 
limits.  Plum  et  at.  v.  Morris  Canal 
and  Banking  Co.  et  al.,  256 

A  court  of  equity  will  interfere  on  be- 
half of  a  single  stockholder,  if  he 
can  show  that  the  corporation  are 
employing  their  statutory  powers, 
funds,  &c. ,  for  the  accomplishment 
of  purposes  not  within  the  scope  of 
their  institution,  and  an  injunction 
in  such  cases  will  be  granted.  But 
it  is  well  settled  that,  acting  within 
the  scope  and  in  obedience  to  the 
provisions  of  the  constitution  of  the 
corporation,  the  will  of  the  majori- 
ty, duly  expressed  at  a  legally  con- 
stituted assembly,  must  govern. 
Crifford  v.  New  Jersey  Railroad 
Co.  171 

The  legislature  may  give  additional 
power,  from  time  to  time,  to  corpo- 
rations ;  and  acts  of  the  corporation, 
in  pursuance  of  such  authority,  are 
binding,  unless  they  conflict  with 
vested  rights  or  impair  the  obliga- 
tion of  contracts.  ib 

By  the  supplement  of  the  charter  of 
the  Newark  and  Bloomfield  Rail- 
road Company,  passed  March  '26th, 
1852.  §  3,  it  is  enacted,  that  nothing 
in  the  supplement  contained  shall 
be  construed  to  impair,  in  any  man- 
ner, any  reversionary  interest  or 
vested  right  which  the  state,  or  any 
incorporated  company  or  com- 
panies, or  any  individual,  may  i>O8- 
sess  under  the  charter  of  the  Bridge 
Company.  This  provision  is  also,  m 
effect,  contained  in  the  constitute  •. 

«ft 

A  stockholder  of  tho  Bridge  Company 
has  a  vested  ri^ht  in  the  value  of 
his  stock  and  interest  in  the  fran- 
chise of  exclusive  tolls,  and,  as  an- 
cillary to  this,  an  interest  in  the 
exclusive  right  of  building  bridges 
over  the  rivers  Passaic  and  Hacken- 
sack. 

Any  act  of  the  incorporation  impair- 
ing those  rights  of  a  stockholder 
without  his  consent,  either  cxprc« 


IKDEX. 


or  implied  would  not  be  binding  on 
him  under  the  above  provisions,  ex- 
cept in  a  proceeding  authorizing  the 
taking  of  private  property  for  pub- 
lic uses  upon  making  compensation. 
But  long  acquiescence  will  be  consid- 
ered as  equivalent  to  a  consent,  and 
•whatever  ground  of  equity  an  indi- 
vidual stockholder  may  have  had,  a 
counter  equity  may  arise  from  lapse 
of  time.  ib 

The  supplement  to  the  Newark  and 
Bloomfleld  Railroad  Company  does 
not  contravene  the  article  of  the  con- 
stitution of  this  state,  which  declares 
that  every  law  shall  embrace  but  one 
object,  and  that  shall  be  expressed  in 
the  title,  as  the  objects  in  the  statute 
are  parts  of  the  same  enterprise, 
and  have  a  proper  relation  to  one 
another.  ib 

The  Morris  and  Essex  Railroad  Com 
pany  have  no  right  to  occupy  or  use 
Broad  and  Centre  streets,  in  the  city 
of  Newark,  in  the  manner  the  same 
are  now  appropriated  by  them,  with- 
out the  consent  of  the  mayor  and 
common  council  of  the  city  of  New- 
ark. Morris  and  Essex  Railroad 
Company  vs.  Newark.  352 

The  complainants  were  authorized  to 
construct  a  railroad  from  Morris- 
town  to  Newark.  That  was  the  ob- 
ject of  their  incorporation;  and  it  is 
manifest,  from  the  whole  act  that  it 
was  the  intention  of  the  legislature 
to  confer  all  the  powers  necessary 
to  enable  the  corporators  to  carry 
out  the  object  for  which  they  were 
incorporated.  But  it  does  not  follow 
that  because  the  legislature  intended 
to  confer  upon  the  company  all  the 
powers  necessary  for  them  to  carry 
out  the  object  for  which  they  were 
incorporated,  that  they  are  there- 
fore necessarily  clothed  with  all 
powers  to  meet  that  necessity;  and 
that  when  not  expressed,  such  pow- 
ers are  to  be  derived  by  implication. 
In  a  limited  sense,  the  proposition  is 
true,  when  the  power  sought  to  be 
implied  does  not  take  away  or  im- 
pair the  legal  rights  of  individuals 
or  of  any  other  corporation.  ib 

The  public  rights  in  the  highways  of 
the  state  can  be  impaired  or  inter- 
fered with  by  nothing  short  of  the 
authority  conferred  by  the  sover- 
eign power.  That  authority  must  be 
expressly  given ;  or  if  conferred  by 
implication,  it  must  be  a  necessary 
implication. 

Held,  that  the  right  is  not  given  by 
this  charter  in  express  terms:  and  it 
cannot  be  implied,  from  any  of  its 
provisions  to  appropriate,  for  the 


purpose  of  their  railroad,  more 
than  one  half  mile  of  the  principal 
public  highway  of  Newark  without 
the  consent  of  the  appropriate  pub- 
lic authorities  of  the  city. 
That  the  acts  of  defendants,  upon 
which  complainants  rely  as  estab- 
lishing consent,  are  not  sufficient. 
There  was  no  license  given  to  the 
company,  either  by  parol  or  in 
writing;  and  no  fraud  can  be  in- 
ferred from  the  fact,  that  the  de- 
fendants did  not  interfere,  but 
stood  by  in  silence,  while  the  com- 
plainants expended  their  money  in 
the  construction  of  their  road  upon 
the  public  highways. 

There  is  no  legislative  sanction,  either 
in  the  supplement  of  3d  March,  1836 
or  in  the  further  supplement  of  22d 
February,  1838,  to  the  company's 
occupying  any  public  highway, 
without  first  obtaining  the  consent 
of  the  proper  legal  authorities. 
They  will  not  warrant  such  a  con- 
struction, ib 

The  charter  declared  that  the  capital 
stock  should  be  actually  paid  in  be- 
fore it  should  be  lawful  for  the  said 
company  to  commence  the  business 
of  insurance,  and  the  company  is 
authorized  to  invest  its  capital  in 
public  stocks,  bonds,  and  mortgages, 
and  such  other  securities  as  the  di- 
rectors may  approve.  It  appeared 
that  the  whole  capital  was  securely 
invested;  that  the  subscription  to 
the  stock  was  made  in  good  faith  ; 
that  the  company  went  on  and  in- 
sured upon  the  faith  of  this. capital. 
It  was  held  that  individuals  who 
gave  their  obligations  to  constitute 
this  capital  could  not  repudiate 
them  on  the  ground  that  the  stock 
had  not  been  subscribed  and  paid  in. 
The  securities  are  not  void  because, 
instead  of  going  through  the  for- 
mality of  receiving  the  money,  and 
then  paying  it  back  and  taking  se- 
curities, the  directors  took  the  secu- 
rities without  this  ceremony. 

One  stockholder  in  a  company,  be- 
cause he  has  an  unsettled  account 
with  them,  or  any  other  matter  of 
dispute,  has  no  right  to  bring  a  com- 
pany into  this  court  to  settle  all  their 
accounts  as  a  company.  Yard  v. 
Ins.  Co.  480 

Admitting  it  to  be  true  that  the  capital 
stock  of  an  insurance  company  was 
not  bona  fide  paid  in,  and  that  the 
company  commenced  the  business  of 
insurance  in  violation  of  the  express 
provision  of  the  charter,  yet  thia 
court  ought  not  to  interfere  with 
suits  brought  upon  bonds  in  a  court 


INDEX. 


593 


of  law  for  the  purpose  of  aiding  the 
complainants  to  avoid  their  pay- 
ment, where  it  appears  the  bonds 
were  given  in  payment  for  the  stock 
of  the  company,  'that  the  complain- 
ant received  his  certificate  of  stock, 
and  that  upon  these  bonds,  as  a  por- 
tion of  the  capital,  the  company 
embarked  in  business. 
The  question  is  a  legal  one,  and  the 
complainant  may  avail  himself  of 
it,  as  far  as  it  is  a  defence  in  the  suit 
at  law.  tfe 


DEBTOR  AND  CREDITOR. 

If  a  bankrupt,  in  course  of  payment, 
pays  a  creditor,  this  is  a  fair  ad- 
vantage in  the  course  of  trade ;  or  if 
a  creditor  threatens  legal  diligence, 
and  there  is  no  collusion,  or  begins 
to  sue  a  debtor,  and  he  makes  an 
assignment  of  part  of  his  goods,  it 
is  a  fair  transaction,  and  what  a 
man  might  do  without  having  any 
Dankruptcy  in  view.  But  if  a  man 
in  contemplation  of  an  act  of  bank- 
ruptcy, dispose  of  all  his  effects  to 
use  of  different  creditors,  it  would 
be  a  fraud  upon  the  acts  of  bank- 
ruptcy ;  but  if  done  in  the  course  of 
trade,  and  not  fraudulent,  it  may 
be  supported.  Peoples  Bank  v.  Pat. 
Sav.  Bank.  13 

The  diligent  creditor  may  acquire 
rights  which  the  law  may  not  dis- 
turb, but  there  is  a  distinction  be- 
tween a  voluntary  preference  of  a 
creditor  by  the  debtor,  and  a  pay- 
ment forced  from  him  by  an  im- 
portune creditor.  16 

A  judgment  creditor,  or  his  assignee, 
cannot,  after  the  judgment  has  been 
paid  in  any  way,  give  it  vitality 
against  the  judgment  debtor,  and!, 
of  course,  not  against  his  creditors. 
The  assignee  takes  it  subject  to  all 
the  equities  between  the  original 
parties.  Stout  v.  Vankirk.  79 

Nor  can  the  debtor  himself,  after  he 
has  paid  the  judgment,  in  any  way 
revive  it  against  a  bona  fidf.  mort- 
gage or  judgment  creditor, who  had 
a  hen  at  the  time  of  payment,  or 
acquired  prior  to  the  act  of  the 
debtor,  by  which  it  is  sought  to 
affect  his  lien.  ib 

Payment  by  the  debtor  operates  for 
the  benefit,  and  as  a  release  in  favor 
of  creditors  having  liens  on  the 
same  fund  bound  by  the  judg- 
ment. t'6 

A  judgment  creditor  may  assign  a 
part  of  his  interest  in  a  judgment. 
If  he  assigns  tho  debt,  a  court  of 
equity  will  secure  to  the  assignee 

VOL.  n  3  D' 


the  benefit  of  the  judgment.    Sneer 
v.  Whitfield  et  al.,  107 

An  assignment  may  be  fraudulent  al 
though  it  was  made  for  a  valuable 
consideration.  If  the  purchase  was 
not  bona  fide,  but  was  made  to  de- 
fraud creditors,  the  assignment  is 
not  valid,  although  an  adequate 
consideration  was  given.  Wilson 
v.  Gray,  323. 

A  father  placed  trust  funds  in  the 
hands  or  his  son  in  law,  for  the 
benefit  of  his  daughter.  The  son  in 
law  purchased  real  estate  with  the 
trust  funds,  and  took  the  deed  in 
his  own  name. 

Held,  that  the  court  would  protect 
the  real  estate  against  a  judgment 
and  execution  creditor  of  the  hus- 
band. Lathrop  v.  Gilbert.  344 

Where  property  is  so  held  by  the  hus- 
band, and  he  expends  his  own 
money,  to  a  large  amount,  in  mak- 
ing improvements  upon  the  trust 
propertv,  for  the  purpose  of  protect- 
ing it  from  his  creditors,  the  court 
might  properly  refuse  its  aid  in  pro- 
tecting the  trust  property,  and 
certainly  would  not  interfere,  ex- 
cept so  far  as  to  protect  the  f unu 
in  the  property  belonging  to  the 
wife.  tfe 

Benjamin  Parkhurst  was  a  large 
trader,  doing  business  in  the  city  of 
Newark.  In  the  course  of  his  trade, 
he  purchased  goods  of  the  defend- 
ants, who  were  merchants  in  the 
city  of  New  York.  It  appeared, 
from  the  answer,  that  Parkhurst 
was  indebted  to  them  in  the  sum  of 
one  thousand  eight  hundred  and 
fifty-five  dollars  and  twenty-three 
cents,  for  goods  sold,  &c.,  and  in 
the  further  sum  of  twelve  hundred 
and  seven  dollars  and  seventy-two 
cents,  for  money  lent  and  advanced. 
Parkhurst  applied  to  one  of  the  de- 
fendants for  further  advances  of 
money,  and  in  order  to  secure  them 
for  such  advances  and  credit  as  de- 
fendants might  give,  as  well  as  tho 
then  existing  indebtedness,  it  was 
agreed  that  Parkhurst  should  con- 
fess a  judgment  for  ten  thousand 
dollars  to  the  defendant,  in  consid- 
eration of  his  then  indebtedness  of 
throe  thousand  and  sixty -two  dollars 
and  ninety-five  cents,  and  that  th« 
defendants  should  advance  to  Jiim 
money  and  goods,  from  time  to 
time,  as  he  should  desire  the  same, 
to  the  amount  of  the  difference  be 
tween  the  sum  last  named  and  tho 
sum  for  which  the  judgment  was  to 
be  confessed.  To  carry  out  this 
arrangement,  the  defendants  gave 


594 


INDEX. 


to  Parkhurst  their  note  for  six 
thousand  nine  hundred  and  forty- 
seven  dollars  and  six  cents,  as  a 
security  to  him  for  their  making 
the  advances,  and  for  giving  credit 
as  agreed  between  them,  with  the 
understanding,  that  as  advances 
were  made,  corresponding  endorse- 
ments were  to  be  made  on  the  note. 
That  under  this  arrangement  the 
judgment  was  confessed,  and  the 
defendant  advanced  Parkhurst  in 
cash  five  thousand  nine  hundred 
and  sixty-five  dollars  and  seventy- 
two  cents,  and  in  goods  two  hun- 
dred and  thirteen  dollars  and  sev- 
enty-five cents,  making,  with  the 
original  indebtedness,  the  sum  of 
nine  thousand  two  hundred  and 
forty-two  dollars  and  forty-two 
cents. 

Held,  that  there  was  no  reason  to 
doubt,  from  anything  that  ap- 
peared on  the  face  of  the  answer, 
but  that  the  defendants  took  their 
judgment  in  good  faith  to  secure  a 
debt  honestly  due  them  and  to  pro- 
tect them  in  such  further  advances 
as  they  might  make  to  their  debtor. 

It  did  not  "appear  that  there  was  any 
affidavit  in  the  case,  and  it  was  in- 
sisted that  a  judgment  cannot  be 
confessed  for  future  advances,  be- 
cause the  plaintiff  cannot  swear 
11  that  the  debt  is  justly  and  honest- 
ly due  and  owing,  and  that  the 
court  should  not  allow  the  defend- 
ants to  enforce  their  judgment,  as 
it  was  in  contravention  of  the  stat- 
ute. But  it  was  held  that  the  only 
ground  of  jurisdiction  in  this  court 
to  interfere  with  the  judgment 
would  be  that  it  was  fraudulent. 

They  could  not  declare  the  judgment 
void  as  against  creditors,  simply 
because  the  judge  or  court  had  suf- 
fered it  to  be  entered  up  in  viola- 
tion of  the  statute. 

It  is  the  conscience  of  the  party  which 
this  court  is  to  test,  and  not  the 
legality  of  the  judgment,  or  to  cor- 

.  rect  the  error  of  a  court  of  law. 
Clapp  v.  Ely.  178 

At  law,  a  judgment  and  execution 
constitutes  no  lien  upon  a  mere 
equitable  interest.  Halsted  v.  Da- 
mson, 290 

A  court  of  equity  may  aid  the  judg- 
ment creditor  in  reaching  that  in- 
terest, and  secure  to  him  a  prefer- 
ence, to  which  by  diligence  he  has 
entitled  himself.  ib 

A  judgment  and  excution  creditor 
cannot  subject  a  property,  in  which 
an  equitable  interest  had  been  se- 
cured to  his  debtor  by  declaration 


of  trust,  to  the  payment  of  the 
judgment  debt.  Where  there  has 
been  no  fraud  in  the  transaction,  no 
property  of  the  debtor  covered  up 
by  it,  no  creditor  injured;  where 
the  debtor  has  never  paid  any  part 
of  the  consideration  money,  or  ever 
had  any  legal  title  to  the  property 
in  question.  to 

If  the  debtor  had  ever  paid  any 
money  upon  the  property,  to  the 
extent  of  such  payment,  the  court 
might  subject  the  property  to  the 
execution,  on  the  ground  of  its  be- 
ing the  debtor's  own  earnings.  ib 

As  a  general  principle,  when  an  ex- 
ecution creditor  has  acquired  an 
equitable  lien,  it  cannot  be  de- 
stroyed or  impaired  by  the  volun- 
tary act  of  the  debtor  or  his  trus- 
tee, ib 

An  equitable  lien  may  be  lost  by  negli- 
gence and  unreasonable  delay.  ib 

A  debtor  has  a  perfect  right  to  prefer 
a  creditor,  and  he  may  make  that 
preference  by  a  mortgage,  as  well 
as  by  any  other  mode  01  security. 
The  mortgage  will  be  a  valid  en- 
cumbrance on  the  premises.  Jones 
v.  Naughright,  298 

Money  for  which  a  judgment  is  con- 
fessed may  be  honestly  due,  and  yet 
the  judgment  not  bona  fide,  if  it 
was  confessed  not  for  the  purpose 
of  securing  the  debt,  but  as  a 
fraudulent  cover  to  the  property, 
and  to  protect  it  from  another 
creditor,  it  should  be  set  aside  as 
fraudulent.  But  to  establish  the 
fraud  in  such  a  case,  the  proof 
of  it  should  be  clear  and  satis- 
factory, ib 

It  would  require  very  strong  and  con- 
vincing circumstances  unexplained 
to  justify  the  inference  that  a  judg- 
ment was  fraudulent,  when  it  was 

proved,  beyond  doubt,  that  the  debt 
was  justly  and  honestly  due.  ib 

J.  K.,  of  the  firm  of  McM.,  R.  &  Co., 
when  the  firm  was  in  failing  cir- 
cumstances, conveyed  his  real  es- 
tate to  P.  D. ,  in  trust  for  his  wife. 
The  deed  was  set  aside  in  favor  of 
the  complainants,  who  were  judg- 
ment and  execution  creditors  of  the 
firm,  on  the  ground,  that  from  the 
answer  of  the  defendants,  and  the 
proofs  in  the  case,  it  appeared  that 
no  consideration  was  paid,  and  that 
it  was  executed  for  the  purpose  of 
protecting  the  property  from  the 
creditors  of  the  firm.  Wilson  v. 
King.  396 

That  a  judgment  and  execution  credi- 
tor may  maintain  a  bill  in  a  court 
of  equity  to  remove  out  of  the  way 


INDEX. 


595 


fraudulent  encumbrances  placed  by 
a  debtor  upon  his  property,  in  order 
that  the  property  may  be  appropri- 
ated free  from  such  fraudulent  en- 
cumbrances to  the  satisfaction  of  the 
creditor's  judgment,  is  well  estab- 
lished. Dunham  v.  Cox,  437 

When  a  creditor  has  by  a  judgment  es- 
tablished his  debt,  by  the  statute  he 
acquires  a  lien  upon  all  the  real  estate 
of  his  debtor  to  sa£isfy  his  debt.  If 
the  debtor  has  fraudulently  convey- 
ed away  or  encumbered  his  real  es- 
tate, so  as  to  interpose  an  obstacle 
•which  embarrasses  the  debtor  in  ap- 
propriating it  by  legal  process  in  sat- 
isfaction of  his  debt,  then  the  credit- 
or may  file  his  bill  to  remove  out  of 
the  way  such  fraudulent  conveyance 
or  encumbrance.  It  is  not  necessary 
for  him  to  take  out  execution  upon 
t~  Is  judgment.  It  is,  perhaps,  most 
advisable  for  him  to  do  so  ;  it  may 
avoid  a  contest  with  a  subsequent 
execution  creditor.  ib 

But  if  it  is  the  personal  property  of  the 
debtor  which  the  creditor  wishes  to 
reach  and  appropriate  to  the  pay- 
ment of  his  judgment,  he  must  take 
out  an  execution  upon  his  judgment 
before  he  can  exhibit  his  bill ;  for  it  is 
by  the  execution,  and  not  by  the 
judgment,  that  he  acquires  a  lien 
ipon  the  personal  property.  ib 

It  is  not  enough  for  the  bill  to  show  that 
the  debtor  has  made  a  fraudulent 
disposition  of  any  particular  portion 
of  his  property  to  entitle  the  creditor 
to  the  aid  of  a  court  of  equity;  he 
must  show  that  such  disposition  em- 
barrasses him  in  obtaining  satisfac- 
tion of  his  debt.  Facts  must  be  sta- 
ted from  which,  at  least,  the  infer 
ence  may  be  drawn  that  the  aid  of 
a  court  of  equity  is  required  to  give 
the  judgment  its  legal  and  full  ef- 
fect, ib 

Bill  defective  on  demurrer.  ib 

Where  money  was  loaned  at  six  per 
cent.,  but  in  case  the  debtor's  busi- 
ness succeeded,  he  was  to  pay  twen- 
ty-live per  cent.,  such  contract, 
though  usurious  -is  to  t  lie  borrower, 
as  to  third  persons  made  the  debtor 
and  cre<litor  partners.  Ulieridan.  \. 
Mtdara,  -I'.:' 


DECREE. 


2fr>  me  can  one**?-  in  a  decree,  except  a 
party  to't  .*r  vine  one  whobe  rights 


are  impaired  by  it.  Terhune  v.  Col- 
ton,  21 

Where  a  complainant  did  not  claim 
under  any  party  to  a  decree,  and  his 
lien  upon  mortgaged  premises  was 
acquired  subsequent  to  it,  and  he 
did  not  impeach  it  for  fraud,  mis- 
take, or  accident,  but,  on  the  con- 
trary, admitted  that  the  decree  was 
entered  in  good  faith  between  the 
parties,  and  there  was  nothing  con- 
nected with  the  suit,  or  the  manner 
in  which  the  decree  was  entered,  or 
in  the  claim  upon  which  it  was 
founded,  to  justify  the  court  in  re- 
fusing to  protect  and  enforce  the 
rights  of  the  respective  parties  un- 
der the  decree,  the  court  would  not 
go  behind  the  decree. '  ib 

Honest  efforts  on  the  part  of  those 
having  claims  under  a  decree  to  secure 
their  debt,  consistent  with  the  fact, 
that  the  debt  was  acknowledged 
due,  and  was  secured  by  the  decree, 
do  not  prove  that  they  released 
their  security  or  abandoned  their 
rights  under  the  decree.  ib 


DEED. 


Farol  evidence  is  admissible  for  the 
purpose  of  showing  a  mistake  in  a 
deed.  McKelway  v.  Armour,  115 

'  A  deed  may  convey  a  distinct  inherit- 
ance in  mines,  the  fee  to  the  land  re- 
maining in  the  grantor.  When  not 
severed  from  the  general  title  to  the 
lands,  they  will  pass  with  the  lands 
without  being  expressly  mentioned 
in  the  deed. 

i  Construction  of  a  deed  conveying 
mines  and  minerals,  and  the  respec- 
tive rights  of  grantor  and  grantee. 
Hartu-fUv.  Caminan,  128 

By  a  conveyance  of  all  "  mines  and 
minerals,"  the  grant  does  not  em- 
brace anything  in  the  mineral  king- 
dom, as  distinguished  from  what 
belongs  to  tho  animul  and  vegeta- 
ble, nor  is  such  a  grant  confined  to 
anv  one  of  tlie  sul>ordinate  divis- 
ions into  which  the  mineral  king- 
dom is  subdivided  by  chemists.  ib 
A  paint  stone,  which  is  found  instrala 
below  the  siirfm*  of  the  soil,  and 
distinct  frx.ni  tho  ordinary  earth, 
and  worked  l»y  tho  ordinary  means 
of  mining,  will  pas*  under  the  terms 
mines  and  mineral*.  ib 

The  owner  of  a  valuable  farm,  situa- 
ted on  tho  river  Delaware,  convoyed 
to  the  Trenton  Delaware  Kails  Com- 
pany, their  mcconon  and  assigns,  a 


596 


INDEX. 


portion  of  his  farm  adjoining  the  riv- 
er, and  across  which  they  had  loca- 
ted their  main  raceway,  "  subject 
nevertheless  to  the  following  pro- 
viso: that  if  the  said  main  race- 
way shall  not  be  made  on  said  pre- 
mises in  conformity  to  the  act  in- 
corporating said  company,  the  said 
lands  and  premises  shall  revert  to 
the  said  George  Woodruff  T  his  heirs 
and  assigns.  And  also,  that  the 
said  party  of  the  second  part 
shall  erect,  maintain,  and  keep  in 
good  repair,  a  safe,  convenient,  and 
substantial  bridge  across  the  said 
main  raceway,  at  a  place  to  be  desig- 
nated by  the  said  grantor ;  and  also 
cause  to  be  made  and  kept  in  order  a 
convenient  landing  place  on  the  side 
next  the  river  Delaware,  so  that 
wagons  may  at  all  times  safely  pass 
over  the  same ;  and  shall  also  erect 
and  maintain  all  necessary  fences 
across  the  said  main  raceway,  to- 
gether with  fences  across  the  said 
premises ;  and  shall  also  permit  the 
said  party  of  the  first  part  to  use  the 
said  raceway  to  give  drink  to  his  cat- 
tle, and  also  to  take  ice  therefrom  to 
fill  his  ice-house.  The  grantees  cut 
the  main  raceway,  and  it  came  into 
the  possession  of  the  defendants,  as 
assignees  of  the  grantees,  by  virtue  of 
several  acts  of  the  legislature.  The 
bill  alleges  that  the  grantees  and  the 
defendants  have  always  refused  to 
perform  their  said  covenants  and 
agreements,  and  prays  a  specific  per- 
formance and  compensation  for  the 
injury  sustained. 

Held,  1st,  that  if  the  matters  men- 
tioned in  the  proviso  of  the  deed 
could  be  legally  regarded  as  cove- 
nants, and  as  such  be  enforced  at 
law,  the  court  would  have  no  diffi- 
culty in  declaring  them  to  be  cove- 
nants relating  to  the  realty  and 
running  with  the  land,  and  that 
both  the  liability  to  perform  them, 
and  the  right  to  take  advantage  of 
them,  passed  to  the  assignee  of  the 
land  and  of  the  reversion.  Such  a 
construction  would  not  conflict  with 
the  principles  established  in  Spen- 
cer's case,  ~5  Coke  16. 

2d.  That  there  are  no  covenants  con- 
tained in  the  deed  on  the  part  of 
the  grantees.  A  condition  is  quite 
distinct  from  a  covenant.  The  lan- 
guage is  appropriate  to  create  a 
condition,  and  as  if  to  avoid  any 
doubt,  the  legal  consequences  of  a 
breach  or  violation  of  the  condition 
is  inserted. 

Upon  covenants,  the  legal  re?ponsi- 
bility  of  their  nonfulfillment  is,  that 
the  party  violating  them  must  re- 


spond in  damages:  the  consequence 
of  the  nonfulfillment  of  a  condition 
is  a  forfeiture  of  the  estate.  Wood- 
ruff v.  Water  J  'ower  Co.  489 

Parol  evidence  is  not  admissible  to 
show  that  the  consideration  passing 
between  the  parties,  and  the  terms 
upon  which  a  conveyance  is  ex- 
pressed to  have  been  made,  are  to- 
tally different  and  contradictory  to 
the  deed  itself. 

The  American  authorities  are  more 
liberal'  than  the  English  in  admit- 
ting parol  testimony  for  some  pur- 
poses relating  to  the  consideration 
expressed  in  a  deed.  Adams  v. 
Hudson  Co.  Bank.  5S5 


DIVORCE. 


Charges  of  adultery  are  improper  in 
a  bill  which  prays  for  a  divorce  a 
mensa  et  thora  only. 

So  much  of  the  evidence  as  related  to 
acts  of  adultery  suppressed.  Sno- 
ver  v.  Snover.  261 

After  petition  for  divorce,  on  the 
ground  of  abuse  and  ill  treatment, 
a  motion  to  allow  a  counsel  fee  and 
maintenance  pendente  lite  refused 
against  a  party  who  had  been  de- 
clared a  lunatic  by  the  court. 

The  order  implies  a  default  and  neg 
lect  of  a  moral  obligation  on  the 
part  of  the  defendant,  which  can- 
not be  imputed  to  a  lunatic.  Me 
Ewen  v.  McEwen.  x.S6 


DOWER 


Dower  is  a  legal  right,  which  is  fa- 
vored both  in  law  and  equity.  To 
debar  the  widow  of  this  right,  and 
put  her  to  an  election  between  her 
dower  and  a  bequest  in  the  will, 
there  must  be  some  express  declara- 
tions of  the  testator  excluding  her 
from  her  right,  or  it  must  be  clear, 
by  implication,  that  such  was  his 
intention.  Norris  v.  Clark.  51 

In  this  case,  the  words  were, ."  I  give, 
devise,  and  bequeath  to  my  beloved 
wife,  Elizabeth  M.  Clark,  six  hun- 
dred dollars,  at  the  end  of  six 
months  after  my  decease,  and  my 
gold  watch,  which  she  carries,  and 
the  silver  teaspoons,  the  two  sets  of 
window  blinds  in  the  back  room, 
and  the  hall  lamp,  which  she  brought 
me  at  or  after  our  marriage ;  and 
her  acceptance  of  the  above  gift 


INDEX. 


597 


shall  for  ever  exclude  her  from  any 
further  demands  on  my  estate." 
It  was  insisted  that  the  accept- 
ance of  the  gift  excluded  the  widow 
from  any  further  demand,  only 
against  the  personal  estate ;  that  the 
legacy  was  to  be  paid  her  by  the 
executor,  and  that  against  that 
estate  out  of  which  the  legacy  was 
to  be  paid  she  was  excluded  from 
any  further  demands.  It  was  held, 
that  if  the  other  parts  of  the  will 
gave  no  further  indication  of  the 
testator's  intention,  this  construc- 
tion might  prevail.  But  as  the 
testator  had  put  both  real  and  per- 
sonal estate  in  the  hands  of  the  exe- 
cutor for  disposition,  and  disposed 
of  his  whole  estate,  real  and  per- 
sonal, through  the  executor,  the 
personal  to  pay  the  widow  the  leg- 
acy, and  the  disposition  was  incon- 
sistent with  the  widow's  enjoyment 
of  her  legal  right,  it  was  the  clear 
and  manifest  implication,  from  the 
whole  will,  that  the  testator  did  in- 
tend the  gift  to  be  in  lieu  of  dower, 
and  did  not  by  the  use  of  the  word 
"estate"  mean  personal  estate 
only.  ib 


EASEMENT. 

A  is  the  owner  of  two  farms,  through 
which  runs  a  natural  stream.  He 
sells  to  B  the  farm  upon  which  the 
watercourse  has  its  origin ;  A  is  en- 
titled to  have  the  water  flow  upon 
the  farm,  which  he  reserves  the 
same  as  he  enjoyed  it  when  he  sever- 
ed his  title,  because  the  watercourse 
did  not  begin  by  the  consent  or  the 
act  of  the  parties,  but  ex  hire 
natures.  But  water  conveyed  by 
pipes  is  a  thing  which  is  created 
and  controlled  oy  the  parties,  and 
is,  in  its  very  nature,  different  from 
a  natural  watercourse. 

C.S.  died,  leaving  a  large  farm,through 
which  was  an  artificial  watercourse. 
Proceedings  were  had  in  the 
Orphaiis'  Court,  for  partition  among 
the  heirs,  and  a  portion  of  the  farm 
through  which  the  artificial  water- 
course run,  was  set  off  to  part  of 
the  heirs,  ami  another  portion  was 
sold  under  an  order  of  the  court. 
Hold,  that  tho  purchasers  were  en- 
titled to  tho  enjoyment  of  the 
watercourse  as  it  existed  at  the 
time  of  sale.  The  act  of  the  com- 
missioners was  no  such  sevornnco  of 
the  unity  of  title  as  would  govern 
the  rights  of  tho  grantor  to  the  en- 
joyment of  the  watercourse. 

Although  a  man  can  have  nucasement 
on  his  own  land,  yet,  by  the  mere 


severance  of  his  title,  he  may  create 
such  easement,  and  the  test  as  to 
whether  such  easement  is  created, 
is  whether  it  is  essential  to  the 
beneficial  enjoyment  of  the  land 
conveyed.  It  is  created  ex  necessi- 
tate, though  not  by  the  words  of 
the  grant.  Brakely  v.  Sharp.  206. 


ESTOPPEL. 

Where  any  one  has  done  an  act  or 
made  a  statement  which  it  would 
be  fraud  on  his  part  to  controvert 
or  impair,  and  such  act  or  state- 
ment has  so  influenced  any  one  that 
it  has  been  acted  upon,  the  party 
making  it  will  be  estopped  and  cut 
off  from  the  power  of  retraction. 
Martin  v.  Righter.  570 


EXECUTOR  AND  ADMINISTRA- 
TOR. 

The  fact  that  a  purchaser  at  an  ad- 
ministrator's sale  was  a  man  of  no 
means,  that  on  the  same  day  the 
administrator  conveyed  the  pro- 
perty to  him,  he  reconveyed  it  to 
the  administrator,  is  sufficient  proof, 
•without  any  explanation  of  the 
transaction,  that  the  purchase  was 
made  for  the  benefit  of  the  adminis- 
trator. 

The  deed  in  such  cases  is  voidable. 

See  Scott  v.  Gamble  and  Wife,  1 
Stock.  23o,  and  Alulford  v.  Bowen, 
Ib.  TV7;  Obert  v.  Obert.  98 

The  rule  of  the  common  law  is  un- 
doubtedly well  established,  that  a 
trustee,  executor,  or  administrator 
shall  have  no  allowance  for  lu's  care 
or  trouble.  The  Court  of  Chancery, 
independent  of  any  statute  law  or 
local  custom,  has,  with  few  excep- 
tions, aUopted  this  rule.  Warbass 
v.  Armstrong.  2ti3 

In  New  Jersey  the  rule  is  different. 
Executors,  "administrators,  guard- 
ians, and  trustees  are  allowed  com- 
pensation by  statute,  and  tho  prin- 
cipal upon  which  allowance  is  to  be 
made  is  regulated  by  statute.  Tho 
statute  declares  it  "shall  be  mado 
with  reference  to  tlu-ir  actual  pains, 
trouble,  and  risk  in  settling  the 
estate,  rather  than  in  respect  to  tho 
(fuantum  of  the  estate.  ib 

The  commission  i  are  a  compensation 
for  the  faithful  discharge  of  dutv. 
Where  a  testator  gave  discretion  to 
trustees  to  wll  land,  ami  directed 
that,  if  sold,  tin1  iinweds  should  Iw 
invested  in  pxxl  landed  security; 
held  that  if  the  funds  arising  from 


598 


INDEX. 


the  sale  had  been  in  the  hands  of 
the  trustees,  and  had  remained  so 
for  a  long  period  without  any  se- 
curity, that  they  had  violated  their 
duty  as  trustees,  and  were  not  en- 
titled to  commissions.  ib 

Trustees  who  did  not  invest  accord- 
ing to  the  terms  of  the  trust  com- 
pelled to  pay  the  costs  of  the 
suit,  the  complainant  having  been 
driven  into  litigation  to  establish 
the  amount  of  the  trust  fund.  ib 

If  a  person  becomes  surety  for  one  as 
administrator,  who  at  the  time  is  a 
debtor  to  the  estate  and  is  insolvent, 
and  is  never  able  to  discharge  such 
indebtedness,  such  surety  is  not 
bound  for  such  a  delinquency  of  his 
principal.  He  is  only  bound  for  the 
faithful  performance  of  his  duties 
as  administrator. 

If,  under  such  circumstances,  the  ad- 
ministrator should,  in  the  settle- 
ment of  his  accounts  with  the  court, 
charge  himself  with  the  debt,  and 
the  accounts  should  be  passed  in 
such  a  shape  as  to  bind  the  surety 
for  the  debt,  the  surety  would  be 
relieved,  upon  application  to  the 
proper  tribunal,  from  such  responsi- 
bility. Harker  v.  Irick.  269 

But  if  at  the  time  the  surety  assumes 
his  responsibility,  the  administrator 
owes  the  estate,  and  is  solvent  and 
able  to  pay,  the  amount  of  the  debt 
will  be  considered,  in  law  and 
equity,  as  so  much  money  in  his 
hands  as  administrator  at  that  time, 
and  consequently  the  surety  will  be 
responsible  for  it.  ib 

This  court  has  concurrent  jurisdiction 
_  with  the  Orphans  Court  in  the  set- 
'  tlement  of  accounts  of  executors 
and  administrators.  It  may  as- 
sume this  jurisdiction  to  the  exclu- 
sion of  the  Orphans  Court  in  any 
case  where  the  ends  of  justice  may 
seem  to  require  it.  If  any  progress 
has  been  made  in  the  Orphans  Court 
in  the  settlement  of  an  account,  the 
Court  of  Chancery  ought  not  to  in- 
terfere with  that  tribunal,  unless 
there  is  shown  some  good  cause 
for  its  doing  so.  Clarke  v.  John- 
son. 287 

Joseph  M.  Stilwell  and  Joseph  R. 
Stilwell  were  the  administrators  of 
Benjamin  Stilwell.  They  were 
both  deceased.  The  bill  called 
upon  the  executors  of  Joseph  M. 
Stilwell  for  a  resettlement,  and  to 
account  for  the  estate  of  Benjamin 
Stilwell  and  to  pay  complainants 
their  distributive  share.  Held,  that 
if  they  were  entitled  to  a  distribu- 
tive share,  they  could  net  call  upon 


the  executors  of  a  surviving  ad- 
ministrator for  any  such  account; 
that  the  executors  did  not  represent 
the  estate  of  Benjamin  Stilwell. 

Benjamin  Stilwell,  at  his  death,  left 
his  brother,  Joseph  R.  Stilwell,  and 
two  sisters  surviving  him.  The 
complainants  were  the  heirs  at  law 
and  next  of  kin  of  Joseph  R.  Stil- 
well. Held,  that  as  they  stood  in 
the  place  of  Joseph  R.  Stilwell, 
they  had  no  right  to  complain  of 
his  fraudulently  using  what  they 
claimed  through  him.  Garret  v. 
Stilwell,  Ex.,  313 

The  testator  directs  that  all  the  resi 
due  of  his  personal  estate,  after 
payment  of  debts  and  legacies,  shall 
be  invested  in  productive  real  es- 
tate. This  does  not  authorize  the 
executors  to  purchase  vacant  lots, 
and  erect  buildings  upon  them. 
Such  property  cannot  be  considered 
productive  real  estate. 

The  testator  authorizes  his  executors 
to  make  suitable  and  convenient 
improvements  and  necessary  re- 
pairs on  the  real  estate  in  their  pos- 
session. This,  in  connection  with 
the  language  used  as  to  the  pur- 
chase of  productive  real  estate,  is 
inconsistent  with  the  idea  that  the 
testator  meant  his  executors  to  pur- 
chase vacant  lots,  and  erect  build- 
ings upon  them. 

The  testator  directs  the  disposition  of 
a  surplus,  which  he  contemplates 
will  remain  after  the  improvements 
made:  this  hardly  comports  with 
the  idea  that  they  should  use  the 
funds  in  their  hands  indiscriminate- 
ly in  the  erection  of  buildings.  Hoi- 
combe  v.  Coryell,  392 


FRAUD. 


To  justify  this  court's  interfering  with 
an  award,  it  must  be  shown  there 
was  fraud,  mistake,  or  accident. 
The  accident  must  be  such  as  to 
have  deprived  the  party  of  the 
benefit  of  a  hearing  or  of  some  sub- 
stantial right:  the  fraud  must 
amount  to  corruption,  partially,  or 
gross  misbehavior  in  the  arbitra- 
tors; and  the  mistake,  if  in  law, 
must  be  a  plain  one,  upon  some 
material  point  affecting  the  case. 
If  a  matter  of  fact,  it  must,  in  gen- 
eral, be  such  as  the  arbitrator  him- 
self would  admit,  such  as  a  mis'cal- ' 
dilation  in  an  account,  and  the  like. 
Veghte  v.  Hoagland,  45 

The  fact,  that  a  purchaser  at  an  admi- 


INDEX. 


599 


nistrator's  sale  was  a  man  of  no 
means,  that  on  the  same  day  the  ad- 
ministrator conveyed  the  property 
to  him,  he  reconvened  it  to  the  ad- 
ministrator, is  sufficient  proof,  with- 
out any  explanation  of  the  traiisacr 
tion,  that  the  purchase  was  made  for 
the  benefit  of  the  administrator. 

The  deed  in  such  case  is  voidable. 

See  Scott,  v.  Gamble  and  Wife,  1 
Stock.  235,  andMulford  v.  Bowens, 
Ib.  797  ;  Obert  v.  Obert,  98 

A.  employs  B.,  as  his  agent,  to  pur- 
chase a  house  for  him.  B.  makes 
the  purchase,  takes  the  deed  in  his 
own  name,  and  pays  his  own  money 
for  it.  A.  cannot  compel  B.  to  con- 
vey. 

It  is  within  the  statute  of  frauds, 
which  requires  the  contract  to  be 
in  writing. 

In  order  to  take  the  case  out  of  the  stat- 
ute, on  the  ground  of  part  perform- 
ance, two  things  are  requisite,  the 
terms  of  the  contract  must  be  estab- 
lished by  proofs  to  be  clear,  definite, 
and  unequivocal,  and  the  acts  relied 
on  as  part  performance  must  be  ex- 
clusively referable  to  the  contract. 

The  disposition  of  courts  at  the  pres- 
ent day  is  to  limit,  rather  than  ex- 
tend exceptions  to  the  statute.  Wal- 
lace v.  Broivn,  308 

Where  a  bill  is  filed  for  the  correction 
of  a  mistake  in  the  execution  of  a 
bond,  and  to  restrain  the  defend- 
ants from  taking  advantage  of  the 
mistake  in  certain  suits  at  law.  the 
defendant  may  set  up,  as  a  defence 
against  the  complainant's  right  to  re- 
lief, that  the  bond  was  procured  by 
fraud.  Hogencamp  v.  Ackerman, 

267 

Where  the  fact  was  established  that 
the  parties  to  a  general  release,  at  the 
time  of  the  execution  of  it,  under- 
stood perfectly  that  the  object,  and 
the  sole  object,  was  to  make  the  re- 
lessee  competent  as  a  witness  in  a 
pending  suit,  it  cannot  be  used  to 
bar  a  recovery  on  a  bond  and  mort- 
gage. 

That  the  relessee  intended  at  the  time 
to  make  use  of  the  opportunity  to 
obtain  a  general  release,  and  turn 
the  transaction  from  an  innocent  to 
a  fraudulent  purpose,  makes  him  a 
fraud  doer. 

^Tiere  anyone  hns  dono  an  art  or  made 
a  statement  which  it  would  bo  fraud 
on  his  part  to  controvert  or  im]>nir, 
and  ftuch  act  or  statement  has  w>  in- 
fluenced any  one  that  it  has  txvn 
acted  upon,  the  party  making  it  will 
be  estopped  and  cut  off  from  tho 


power   of   retraction. 
tighter, 


Martin  v. 
570 


If  a  woman,  during  the  course  of  a 
treaty  of  marriage  with  her,  makes, 
without  notice  to  the  intended  hus- 
band, a  conveyance  of  any  part  of 
her  property,  though  good  prima 
facie,  it  may  be  set  aside  because 
affected  with  that  f  raud. 

In  the  case  of  actual  fraud,  a  court  of 
equity  will  not  refuse  relief  on  ac- 
count of  lapse  of  time  where  the 
bill  was  filed  with  great  prompt- 
ness after  the  supposed  discovery  of 
the  alleged  fraud  was  made.  Wil- 
liams v.  Carle,  543 

The  object  of  "the  act  to  prevent 
frauds  by  incorporated  companies" 
is  to  secure  to  the  creditors  of  such 
institutions  an  equal  distribution  of 
its  assets.  This  is  the  primary  ob- 
ject of  the  statute.  Any  act  'done 
with  the  view  and  for  the  purpose 
of  defeating  this  object,  is  a  fraud 
upon  the  act,  and  is  illegal.  Peoples 
Bank  v.  Paterson  Savings  Bank,  13 

Our  courts  have  always  recognised 
the  object  and  provisions  of  the  act 
in  question  and  the  bankrupt  laws 
to  be  essentially  the  same;  and  if  it 
is  to  be  considered  as  partaking  of 
the  character  of  a  bankrupt  law,  it 
is  proper  to  apply  to  it  the  general 
rules  that  govern  the  system,  where 
it  is  in  use.  ib 

If  a  bankrupt,  in  course  of  payment, 
pays  a  creditor,  this  is  a  fair  advan- 
tage in  the  course  of  trade  ;  or  if  a 
creditor  threatens  legal  diligence, 
and  there  is  no  collusion,  or  begins 
to  sue  a  debtor,  and  he  makes  an  as 
sig^imcnt  of  part  of  his  goods,  it  is  a 
fair  transaction,  and  what  a  man 
might  do  without  having  any  bank- 
ruptcy in  view.  But  if  a  man,  m 
contemplation  of  nn  act  of  tank- 
ruptcy,  dispose  of  all  his  effects  to 
the  use  or  different  creditors,  it 
would  lw  a  fraud  ution  the  acts  of 
bnnkiiiptcy  ;  but  if  done  in  the 
course,  of  trade,  and  not  fraudu- 
lent, it  may  lie  Mipix>rU'd.  ib 


Whore  a  bank  1ms  hocomo  so  hn 
ly  insolvent  that  the  dint-tors  are 
forced  to  the  conclusion  that  it  is  in- 
cumbent upon  them  at  OIHV  to  cltj«e 
the  doors  of  the  bank,  and  alxuulon 
the  objects  for  which  tho  institution 
was  inrorjxirutcd.  the  i-nhhh-r  may 
lawfully  UK  i-t  all  demands  made  up- 
on it,  up  to  tho  inoi  iiont  t  In-  U'uik.Mi.s- 
pondK  p:i\  m<-iit.  and  all  -uc'i  p:i>- 
iiii-nN  are  valid.  But  In-  cannot,  • 
while-  ho  is  dealing  out  to  imjxir- 
tunnU)  creditors  thuir  legal  do. 


600 


INDEX. 


mands  with  one  hand,  with  the 
other,  place  the  assets  of  the  bank 
in  his  pocket  for  absent  friends  and 
favorites.  The  diligent  creditor 
may  acquire  rights  which  the  law 
will  not  disturb,  but  there  is  a  dis- 
tinction between  a  voluntai~y  pref- 
erence of  a  creditor  by  the  debtor, 
and  a  payment  forced  from  him  by 
an  importunate  creditor. 

So  where  one  of  the  directors  of  the 
bank  puts  a  note  in  his  pocket  to 
delivered  to  a  creditor,  for  the  pur- 
pose of  giving  him  a  preference,  to 
which  he  was  not  entitled  by  any 
diligence  of  his  own,  it  was  held 
not  to  be  a  payment  in  the  usual 
course  of  dealing.  ib 

Tha  assignment  and  transfer  of  prom- 
issory notes,  in  contemplation  of  the 
insolvency  of  an  incorporated  com- 
pany, is  declared  by  the  act  to  be  ut- 
terly null  and  void  as  against  cred- 
itors, and  where  a  voluntary  pref- 
.erence  is  given  to  a  creditor,  for 
the  sole  purpose  of  giving  him  an 
advantage  over  other  creditors,  and 
under  such  circumstances  that  it 
cannot  be  said  to  be  made  in  the  or- 
dinary course  of  business,  it  is  in 
direct  violation  of  the  second  sec- 
tion of  the  act.  t'6 


HIGHWAY. 


The  legislature  is  the  sole  judge 
and  arbitrator  to  determine  when 
streams  shall  be  considered  as  navi- 
gable rivers,  and  be  maintained  and 
protected  as  such.  Glover  v.  Pow- 
ell, 211 

The  legislature  has  the  power  to  au- 
thorize the  use  of  a  public  highway 
for  the  purpose  of  a  railroad,  in  such 
a  manner  as  not  entirely  to  destroy 
its  use  in  the  ordinary  mode.     The 
use  of  public  highways  belongs  to 
the  public,  but  they  have  not  been 
dedicated  to  any  particular  mode  of 
travel  or  use.     It  is  perfectly  con- 
sistent with  the  purpose  for  which 
they    were    originally    designated 
apcl    intended    that  the  public  au-  j 
thorities,  who  have  the  control  of  ! 
them    as   public  highways,   should 
adapt  them  in  their  use  to  the  con-  \ 
vemence  and  improvement  of  the  | 
age.     Morris  and  Essex  Railroad  \ 
Co.  v.  Neivark.  352  | 

The  legislature  must  be  the  judges  as  | 
to  the  benefit  to  the  public,  and  to 

•  their  authority  individuals  and  the 
public  must  submit.  ib 

The  authority  to  use  a  public  high- 


way  for  the  purposes  of  a  railroad, 
retaining  the  use  of  such  highway 
for  all  Ordinary  purposes,  subject 
only  to  the  inconvenience  of  the 
railroad,  is  not  such  taking  of  pri- 
vate property  from  the  owner  of 
the  fee  of  the  adjacent  lands  as  is 
contemplated  by  the  provision  of 
the  constitution,  which  provides 
that  individuals  or  private  corpora- 
tions shall  not  be  authorized  to  take 
private  property  for  public  use 
without  just  compensation  first 
made  to  the  owners.  The  easement 
of  the  highway  is  in  the  public,  al- 
though the  fee  is  technically  in  the 
adjacent  owner.  It  is  the  easement 
only  which  is  appropriated,  and  no 
right  or  title  of  the  owner  inter- 
fered with.  If  the  legislature  au- 
thorizes the  company  to  take  the 
highway,  and  appropriate  it  to  its 
own  use,  by  destroying  the  ordi- 
nary and  legal  right  of  the  public 
to  use  it  as  a  highway,  then  com- 
pensation must  be  provided;  be- 
cause when  the  right  of  the  public 
in  it  ceases,  then  the  use  of  it  re- 
verts to  the  person  who  holds  the 
fee  in  the  land.  Then  the  legisla- 
ture authorizes  to  be  taken  some- 
thing which  belongs  to  the  land 
owner,  to  wit,  the  use  of  the  land. 

ib 

It  follows  further,  that  an  adjacent 
land  owner  cannot  maintain  an  ac- 
tion at  law  for  consequential  dam- 
ages, unless  he  can  show  a  negligent 
exercise  by  the  company  of  their 
legal  rights;  because  no  action  at 
law  urill  lie  for  a  consequential  in- 
jury necessarily  resulting  from  the 
exercise  of  a  legal  right  under  leg- 
islative authority.  ib 


HUSBAND  AND  WIFE. 

The  interest  which  the  husband  re- 
quires in  the  wife's  inheritance  is 
subject  to  judgment  and  execution 
against  the  husband.  Husband  and 
wife  are  jointly,  seized  in  right  of 
the  wife.  Nicholls  v.  O'Neil,  88 

A  feme  covert  cannot  make  any  con- 
tract except  as  to  her  separate  es- 
tate. Young  v.  Paufy  401 

Where  the  refusal  of  the  wife  to  unite 
with  her  husband  in  the  conveyance 
was  owing  entirely  to  the  contriv- 
ance and  fraud  of  the  defendant, 
who  in  this  way  was  endeavoring 
to  deprive  the  complainant  of  the 
benefit  of  a  specific  performance  of 
the  contract,  that  the  court  ordered 
the  agreement  performed,  and  the 
conveyance  to  be  so  made  between 


INDEX. 


the  parties  the  complainant  may  i     Butz  farm,  and  was  thus  placed  in 
hold  in  the  land  which  he  conveys       a  position  from  which  he  could  not 


an  indemnity  against  any  future 
claim  to  be  set  up  by  defendant's 
wife. 

It  was  objected  that  the  wife  was  not 
a  party  to  the  bill,  and  that  no  de- 
cree could  be  made  against  her  to 
execute  the  deed,  as  she  was  not  a 
party.  But  the  Chancellor  said  no 
decree  could  be  made  against  her,  if 
she  were  a  party.  If  she  had  actu- 
ally signed  the  agreement  with  her 
husband,  it  would  have  been  void 
as  to  her.  ib 

A  feme  covert  cannot  make  any  con- 
tract, except  as  to  her  separate 
estate.  Had  the  wife  been  made  a 
defendant,  a  demurrer,  as  to  her, 
would  have  been  sustained.  ib 

It  was  further  said,  that  the  deed  ten- 
dered was  a  substantial  compliance 
with  the  agreement,  because  it  con- 
tained a  covenant  to  indemnify  the 
complainant;  but  it  was  hold"  that 
no  court  would  say  that  a  mere 
personal  covenant  was  sufficient  in- 
demnity, ib 

A  want  of  mutuality  in  the  contract 
was  urged  as  an  objection  against 
the  decree,  that  the  agent  who 
signed  for  the  complainant  was  not 
legally  authorized;  but  it  is  no 
legal  unyielding  obstacle  to  the 
court's  making  a  decree,  that  the 
contract  is  signed  only  by  one  of 
the  parties.  ib 

It  was  argued  that  the  decree  would 
in  effect  force  the  wife  into  ex-  { 
ecuting  the  deed,  which  should  be 
her  free  and  voluntary  act.  The 
Chancellor  said,  "  Upon  a  careful 
examination  of  all  the  authorities, 
if  the  alternative  were  presented  to 
me  of  making  a  decree  for  specific 
performance  by  procuring  the  wife 
to  join  in  the  deed,  or  to  dismiss  the 
bill,  I  should  accept  the  latter."  ib 

The  power  of  the  court  to  direct  in- 
demnity in  such  a  case  cannot  be 
denied ;  it  is  the  proper  and  natural 
mode  of  administering  equity  be- 
tween the  parties.  ib 

(  ases  where  the  wife's  refusal  to  join 
was  bona  fide,  and  not  the  result  of 
the  husband's  interference,  or  cases 
where  an  action  for  damages  would 
give  adequate  redress,  are  not 
within  the  ruling  in  this  case  by 
RYERSON,  J.  «o 

1  he  controlling  equity  of  the  case  is, 
that  upon  the  faith  of  this  agm>- 
ment  with  Young,  complainant  was 
drawn  into  tho  purcliase  of  the 

AfoL.  n.  3  E 


extricate  himself.  He  bought  the 
farm,  not  for  himself,  but  for  Mr. 
Young.  POTTS,  J.  ib 

If  a  woman,  during  the  course  of  a 
treaty  of  marriage  with  her,  makes, 
•without  notice  to  the  intended  hus- 
band, a  conveyance  of  any  part  of 
her  property,  though  good  prima 
facie,  it  may  be  set  aside  because 
affected  with  that  fraud.  Williams 
v.  Carle.  543 

In  the  case  of  actual  fraud,  a  court  of 
equity  will  not  refuse  relief  on  ac- 
count of  lapse  of  time  where  the 
bill  was  filed  with  great  promptness 
after  the  supposed  discovery  of  the 
alleged  fraud  wus  made.  ib 

If  a  woman,  on  the  eve  of  her  marri- 
age, rightfully  placed  a  part  of  her 
estate  in  her  sister's  hands,  in  trust 
for  the  children  of  her  intended 
marriage,  and  there  were  no  chil- 
dren of  the  marriage,  the  fund  be- 
longs to  the  husband  on  the  death 
of  the  wife.  ib 

Where  there  were  children,  who,  as 
cestui  que  trusts,  disclaimed  title, 
and  renounced  all  right  to  the  fund, 
and  declined  to  accept  it,  the  fund 
belongs  to  the  husband,  as  adminis- 
trator, ib 

INFANCY. 

A  testator  at  his  death  left  a  widow, 
since  deceased,  and  three  minor 
children.  His  widow  took  a  life 
estate  only  in  the  land  and  promiseo 
under  his  will.  Some  years  after 
the  death  of  testator,  his  widow 
conveyed  the  premises  in  question 
to  a  trustee,  in  trust  for  the  benefit 
of  her  minor  children,  with  power 
to  dispose  of  and  convev  the  same 
to  the  oest  advantage.  Tho  trustee 
sold  tho  premises,  and  tho  posses- 
sion of  the  premises  hod  since  fol- 
lowed his  conveyance.  The  court 
refused  to  enjoin  the  minor  children 
from  prosecuting  on  action  of  eject- 
ment, or  to  ordor  them  to  execute 
conveyance.*  or  rel<'ns«>s,  as  there 
was  no  evidence  that  thov,  after 
arriving  at  ago,  had  a*wiitod  to  the 
sale,  or  recoiv<>d  any  omsidoration 
for  it.  Farley  v.  If'oodburn.  U6 


INJUNCTION. 

Tin's  court  has  no  right  to  itMittitonn 
inquiry  into  tho  doctrines  or  mode 
of  wordshipof  any  religious  aorjpty, 
except  such  inquiry  t>liull  bocouio 


602 


INDEX. 


absolutely  necessary  for  the  protec- 
tion of  trust  property. 

Nor  would  it  be  justified  in  issuing  an 
injunction  to  enjoin  a  clergyman, 
who  without  any  pretence  of  right, 
should  take  upon  himself  to  tres- 
pass upon  a  congregation,  by  enter- 
ing their  pulpit,  and  promulgating 
his  peculiar  religious  doctrines. 
Lutheran  Church  v.  Jdaschop,  57 

The  court  has  no  authority  to  enjoin 
a  mere  trespasser  without  shadow 
of  right.  ib 

The  court  cannot  grant  an  injunction 
to  allay  the  fears  and  apprehensions 
of  individuals.  They  must  show 
the  court  that  the  acts  against  which 
they  ask  protection  are  not  only 
threatened,  but  will,  in  probability, 
be  committed  to  their  injury.  ib 

An  ordinance  of  the  city  of  Perth 
Amboy,  which  ordained  that  the 
streets  be  graded  and  regulated, 
but  did  not  specify  how,  nor  refer 
to  maps,  profiles,  or  to  any  order  or 
proceeding  by  or  under  the  authori- 
ty of  the  council,  by  which  it  could 
be  ascertained  how  the  grading  was 
to  be  done,  was  held  to  be  in  viola- 
tion of  the  rights  of  the  land  owners 
in  the  city,  and  unlawful,  as  they 
could  not  comply  with  its  require- 
ments, and  the  act,  if  they  did  not 
do  so  within  two  months,  deprived 
them  of  the  privilege  of  doing  it 
themselves. 

But  although  the  ordinance  is  illegal, 
the  court  will  not  grant  an  injunc- 
tion simply  on  the  ground  of  the 
illegality  of  the  ordinance.  The  in- 
jury must  be  specified,  and  so 
pointed  out  that  the  court  can  see 
it  must  be  the  inevitable  conse- 
quence of  the  act  threatened  and 
complained  of.  Kearney  v.  An- 
drews, 70 

Where  an  injunction  has  been  dis- 
solved for  want  of  equity  in  the 
bill,  the  court  will  not  grant  an  ex 
parte  injunction  upon  an  amended 
bill,  or  upon  a  new  bill  supplying 
that  equity.  Hornor  v.  Leeds,  86 

A  court  of  equity  will  interfere  on 
behalf  of  a  single  stockholder,  if  he 
can  show  that  the  corporation  are 
employing  their  statutory  powers, 
funds,  &c.,  for  the  accomplishment 
of  purposes  not  within  the  scope  of 
their  institution,  and  an  injunction 
in  such  cases  will  be  granted.  Gif- 
ford  v.  New  Jersey  Railroad  Com- 
pany, 171 

A  subpoena  must  be  taken  out  with 
the  injunction,  and  made  returnable 
within  the  time  prescribed  by  the 
rule  for  a  return  of  service  of  the 
injunction. 


The  rule  requires  the  injunction  to 
be  served  within  ten  days  after  the 
issuing  thereof,  and  a  return  of  ser- 
vice made  to  the  court  within  twen- 
ts  days  after  such  service.  Lee  v. 
Cargill,  331 

The  general  rule  is,  that  in  order  to 
obtain  the  dissolution  of  an  injunc- 
tion, all  the  defendants  must  an- 
swer the  equity  of  the  bill.  But 
the  qualification  of  the  rule  is,  that 
it  is  enough  if  those  defendants  an- 
swer upon  whom  the  gravamen  of 
the  charge  rests.  Adams  v.  Hud- 
son County  Bank,  535 


JUDGMENT  AND  EXECUTION. 


A  judgment  creditor,  or  his  assignee, 
cannot,  after  the  judgment  has  been 
paid  in  any  way,  give  it  vitality 
against  the  judgment  debtor,  and, 
of  course,  not  against  his  creditors. 
The  assignee  takes  it  subject  to  all 
the  equities  between  the  original 
parties. 

Nor  can  the  debtor  himself,  after  he 
has  paid  the  judgment,  in  any  way 
revive  it  against  a  bona  fide  mort- 
gage or  judgment  creditor,  who  had 
a  lien  at  the  time  of  payment,  or 
acquired  prior  to  the  act  of  the 
debtor,  by  which  it  is  sought  to  af- 
fect his  lien.  Stout  v.  Vankirk,  79 

The  interest  which  the  husband  ac- 
quires in  the  wife's  inheritance  is 
subject  to  judgment  and  execution 
against  the  husband.  Husband  and 
wife  are  jointly  seized  in  right  of 
the  wife.  Nicholls  v.  O'Neill,  88 

Benjamin  Parkhurst  was  a  large 
trader,  doing  business  in  the  city 
of  Newark.  In  the  course  of  his 
trade,  he  purchased  goods  of  the 
defendants,  who  were  merchants  in 
the  city  of  New'  l£ork.  It  appeared, 
from  the  answer,  that  Parkhurst 
was  indebted  to  them  in  the  sum 
of  one  thousand  eight  hundred  and 
fifty-five  dollars  and  twenty-three 
cents,  for  goods  sold,  &c.,  and  in 
the  further  sum  of  twelve  hundred 
and  seven  dollars  and  seventy-two 
cents,  for  money  lent  and  advanced. 
Parkhurst  applied  to  one  .of  the  de- 
fendants for  further  advances  of 
money,  and  in  order  to  secure  them 
for  such  advances  and  credit  as  de- 
fendants might  give,  as  well  as  the 
then  existing  indebtedness,  it  was 
agreed  that  Parkhurst  should  con- 
fess a  judgment  for  ten  thousand 
dollars  to  the  defendant,  in  consid- 
eration of  his  then  indebtedness  of 
three  thousand  and  sixty-two  dollars 


IM)EX. 


603 


and  ninety-five  cents,  and  that  the 
defendants  should  advance  to  him 
money  and  goods,  from  time  to  time, 
as  he  should  desire  the  same,  to  the 
amount  of  the  difference  between 
the  sum  last  named  and  the  sum  for 
which  the  judgment  was  to  be  con- 
fessed. To  carry  out  this  arrange- 
ment, the  defendants  gave  to  Park- 
hurst  their  note  for  six  thousand 
nine  hundred  and  forty -seven  dol- 
lars and  six  cents,  as  a  security  to 
him  for  their  making  the  advances, 
and  for  giving  credit  as  agreed  be- 
tween them,  with  the  understand- 
ing, that  as  advances  were  made, 
corresponding  endorsements  were 
to  be  made  on  the  note.  That  under 
this  arrangement  the  judgment  was 
confessed,  and  the  defendant  advan- 
ced Parkhurst  in  cash  five  thousand 
nine  hundred  and  sixty-five  dollars 
and  seventy-two  cents,  and  in  goods 
two  hundred  and  thirteen  dollars 
and  seventy-five  cents,  making, 
with  the  original  indebtedness,  the 
sum  of  nine  thousand  two  hundred 
and  forty-two  dollars  and  forty- 
two  cents. 

Held,  that  there  was  no  reason  to 
doubt,  from  anything  that  appeared 
on  the  face  of  the  answer,  but  that 
the  defendants  took  their  judgment 
in  good  faith  to  secure  a  debt  hon- 
estly due  them  and  to  protect  them 
in  such  further  advances  as  they 
might  make  to  their  debtor. 

It  did  not  appear  that  there  was  any 
uffidavit  in  the  case,  and  it  was  in- 
fisted  that  a  judgment  cannot  be 
confessed  for  future  advances,  be- 
tause  the  plaintiff  cannot  swear 
''that  the  debt  is  justly  and  honest- 
ly due  and  owing,  and  that  the 
court  should  not  allow  the  defend- 
ants to  enforce  their  judgment,  as 
it  was  in  contravention  of  the  stat- 
ute. But  it  was  held  that  the  only 
ground  of  jurisdiction  in  this  court 
fe>  interfere  with  the  judgment 
would  be  that  it  was  fraudulent. 

Tb«y  could  not  declare  the  judgment 
void  as  against  creditors,  simply  be- 
cause the  judge  or  court  had  suffered 
It  to  be  entered  up  in  violation  of 
the  statute. 

It  is  the  consience  of  the  party  which 
this  court  is  to  test,  and  not  the  le- 
gality of  the  judgment,  or  to  cor- 
rect the  error  of  a  court  of  law. 
Clapp  v.  Ely,  178 

/  t  law,  a  judgment  an  J  execution  con- 
stitutes no  lien-upon  a  mere  equita- 
ble interest.  Halsted  v.  Davison. 

291 

A.  court  of  equity  may  aid  tho  judg- 


ment creditor  in  reaching  that  in- 
terest, and  secure  to  him  a  prefer- 
ence, to  which  by  diligence  he  has 
entitled  himself.  \b 

A  judgment  and  execution  creditor 
cannot  subject  a  property,  in  which 
an  equitable  interest  has"  been  secu- 
red to  his  debtor  by  declaration  of 
trust,  to  the  payment  of  the  judg- 
ment debt.  v\  nere  there  has  been 
no  fraud  in  the  transaction,  no 
property  of  the  debtor  covered  up 
by  it,  no  creditor  injured;  where 
the  debtor  has  never  paid  any  part 
of  the  consideration  money,  or  ever 
had  any  legal  title  to  the  proper- 
ty in  question.  ib 

If  the  debtor  had  ever  paid  any  money 
upon  the  property,  to  the  extent  of 
such  payment,  the  court  might  sub- 
ject the  property  to  the  execution, 
on  the  ground  of  its  being  the  debt- 
or's own  earnings.  16 

Monej'  for  which  a  judgment  is  con- 
fessed may  be  honesly  due,  and  vet 
the  judgment  not  bona  fide.  If  it 
was  confessed  not  for  the  purpose 
of  securing  the  debt,  but  as  a  fraud- 
ulent cover  to  the  property,  and  to 
protect  it  from  another  creditor,  it 
should  be  set  aside  as  fraudulent. 
But  to  establish  the  fraud  iu  such  a 
case  the  proof  of  it  should  be  clear 
and  satisfactory. 

It  would  require  very  strong  and  con- 
vincing circumstances  unexplained 
to  justify  the  inference  that  a  judg- 
ment was  fraudulent,  when  it  was 
proved,  beyond  doubt,  that  the 
debt  was  justly  and  honestly  due. 
Jones  v.  Aaugnright,  M'.'S 

A  judgment  and  execution  creditor 
of  the  mortgagee  may  file  a  bill  of 
discovery  against  an  alleged  fraud- 
ulent assignee  of  the  mortagee,  and 
if  the  assignment  is  fraudulent,  the 
creditor  is  entitled  to  the  mortgage 
fund.  The  statute  avoids  all  diffi- 
culty which  might  have  existed  to 
a  creditor's  maintaining  his  bill  for 
a  discovery  as  to  property  not  sub- 
ject to  execution.  Wilson  v.  Graw, 

323 

The  interest  of  a  mortgagee  in  per- 
sonal property,  where  the  possess- 
ion remains  "with  the  mortgagor, 
and  before  condition  broken,  cannot 
be  taken  in  execution  as  the  prop- 
erty of  the  mortgagee.  A  mortga- 
gor's interest  in  personal  property 
is  the  subject  of  execution  ana  sale, 
a  mortgagee's  intervst  is  rot.  b 

That  a  judgment  and  execution  credit- 
or may  maintain  a  bill  in  a  court  of 
equity  to  remove  out  of  the  waj 


604: 


INDEX. 


fraudulent  encumbrances  placed  by 
a  debtor  upon  his  property,  in  or- 
der that  the  property  may  be  ap- 
propriated free  from  such  fraudu- 
lent encumbrances  to  the  satisfac- 
tion of  the  creditor's  judgment,  is 
well  established.  Dunham  v. 
Cox.  437 

When  a  creditor  has  by  a  judgment 
established  his  debt,  by  the  statute 
he  acquires  a  lien  upon  all  the  real 
estate  of  his  debtor  to  satisfy  his 
debt.  If  the  debtor  has  fraudu- 
lently conveyed  away  or  encumber- 
ed his  real  estate,  so  as  to  interpose 
an  obstacle  which  embarrasses  the 
debtor  in  appropriating  it  by  legal 
process  in  satisfaction  of  his  debt, 
then  the  creditor  may  file  his  bill 
to  remove  out  of  the  way  such 
fraudulent  conveyance  or  encum- 
brance. It  is  not  necessary  for  him 
to  take  out  execution  upon  his  judg- 
ment. It  is,  perhaps,  most  advisa- 
ble for  him  to  do  so ;  it  may  avoid 
a  contest  with  a  subsequent  execu- 
tion creditor.  ib 

But  if  it  is  the  personal  property  of 
the  debtor  which  the  creditor  wish- 
es to  reach  and  appropriate  to  the 
payment  of  his  judgment,  he  must 
take  out  an  execution  upon  his 
judgment  before  he  can  exhibit  his 
bill ;  for  it  is  by  the  execution,  and 
not  by  the  judgment  that  he  ac- 
quires a  lien  upon  the  personal 
property.  ib 


JURISDICTION. 

This  court  will  not  assume  a  jurisdic- 
tion to  try  the  lawful  election  of  of- 
ficers and  the  validity  of  ordinances 
of  corporate  bodies  upon  the  mere 
allegation  that  the  complainants 
are  holders  of  real  estate  in  a  city 
and  that  the  value  of  their  proper- 
ty is  directly  involved  in  proceed- 
ings which  are  going  on  and  threat- 
ened, and  that  the  proceedings  are 
useless,  and  will  tend  to  depreciate 
their  property  in  value.  Kearney 
v.  Andrews.  70 

This  court  is  not  the  proper  tribunal 
to  try  the  legal  title  to  land,  but  it 
is  its  peculiar  province  to  determine 
questions  of  fraud,  and  to  set  aside 
fraudulent  conveyances  interposed 
to  defeat  the  legal  title.  Obert  v. 
Obert.  98 

Complainant  erected  a  valuable  dwell- 
ing house,  by  mistake,  on  the  land 
of  defendant;  defendant  lived  in 
the  vicinity,  saw  complainant  pro- 
gressing from  day  to  day,  with  the 
improvements,  and  admitted  that 
he  did  not  suspsct  the  erections  to 
be  upon  his  lot  until  some  time  after 


their  actual  erection,  when,  by  ac- 
tual measurement,  to  his  surprise, 
he  discovered  the  mistake.  The 
court  relieved  the  complainant, 
putting  the  defendant  to  as  little 
inconvenience  as  possible.  McKel- 
way  v.  Armour.  115 

The  Court  of  Chancery  has  no  power 
to  decree  alimony,  except  as  inci- 
dent to  divorce,  except  in  the  single 
case  provided  for  by  the  10th  sec- 
tion of  the  statute.  Yule  v.  Yvle. 

138 

This  court  has  the  power  to  order  a 
bond  or  other  instrument  to  be  de- 
livered up  to  be  cancelled,  and  the 
court  may  properly  exercise  the 
power,  although  the  grounds  upon 
w'hich  the  jurisdiction  of  the  court 
is  invoked  may  constitute  a  valid 
defence  at  law  against  the  writing. 
Cornish  v.  Bryan.  146 

The  Court  of  Chancery  in  this  state 
has  never  adopted  the  principle, 
that  because  its  jurisdiction  has 
once  rightfully  attached,  it  will  re- 
tain the  cause  as  a  matter  of  right, 
for  the  purposes  of  complete  relit  f. 
Little  v.  Cooper.  213 

All  bills  in  the  court  are  in  their  na- 
ture, bills  of  discovery.  Some  are 
bills  for  discovery  purely.  When 
the  subject  matter  is  one  which  is 
properly  cognizable  at  law  only, 
and  adequate  relief  can  be  given 
there,  a  Court  of  Chancery  fre- 
quently takes  jurisdiction,  in  order 
that  a  discovery  may  be  had  on 
the  oath  of  a  party,  or  to  compel 
the  production  of  papers  and  docu- 
ments. The  end  for  which  the  ju- 
risdiction of  the  court  was  invoked 
having  been  attained,  the  party 
seeks  his  redress  in  the  proper  trib- 
unal at  law.  ib 

Where  a  bill  prays  for  partition,  and 
the  defendants  deny  complainant's 
title,  if  the  title  in  dispute  is  an 
equitable  one,  it  is  the  duty  of  the 
court  to  settle  it.  If  it  is  a  legal  ti- 
tle, the  court  may  dismiss  the  bill, 
or  may  retain  the  cause,  and  afford 
the  party  an  opportunity  of  settling 
his  title  at  law. 

But  the  bare  denial  of  the  complain- 
ant's title  is  no  obstacle  to  the 
court's  proceeding.  The  defend- 
ant must  answer  the  bill,  and  if  he 
sets  up  a  title  adverse  to  the  com- 
plainant, or  disputes  the  complain- 
ant's title,  he  must  discover  his  own 
title. 

If  when  the  titles  are  spread  before 
the  court  upon  the  pleadings,  the 
court  can  see  there  is  no  valid  legal 
objection  to  the  complainant's  ti- 
tle, there  is  no  reason  why  the 
court  should  not  proceed  to  order 
thf  .•  partition. 


C05 


But  where  there  were  serious  ques- 
tions, both  of  law  and  fact,  involved 
in  the  controversy  between  the  par- 
ties as  to  the  title,  the  court  retain- 
ed the  bill,  and  gave  the  parties  an 
opportunity  of  settling  tne  title  at 
law.  Lucas  v.  Kiny,  277 

This  court  has  concurrent  jurisdiction 
with  the  Orphans  Court  in  the  set- 
tlement of  accounts  of  executors 
and  administrators.  It  may  assume 
this  jurisdiction  to  the  exclusion  of 
the  Orphans'  Court,  in  any  case 
where  the  ends  of  justice  may  seem 
to  require  it.  If  any  progress  has 
been  made  in  the  Orphans  Court,  in 
the  settlement  of  an  account,  the 
Court  of  Chancery  ought  not  to  in- 
terfere with  that  tribunal,  unless 
there  is  shown  some  good  cause  for 
its  doing  so.  Clark  \.  Johnson,  287 

Where  a  court  of  equity  has,  by  the 
solicitation  of  a  suitor  invoking  the 
aid  of  the  court  for  his  relief,  inter- 
fered with  the  legal  rights  of  an- 
other, and  impaired  his  legal  re- 
medy, it  is  the  duty  of  this  court  to 
protect  the  party  whose  rights  have 
been  thus  interfered  with  against 
any  undue  advantage  attempted  to 
be  taken  by  the  other  party,  at 
whose  solicitation  the  power  of  this 
court  was  called  into  action. 

One  acknowledged  principle  on  which 
courts  of  equity  give  relief,  is  to 
prevent  an  advantage  gained  at 
law  from  being  used  against  con- 
science. Doughty  v.  Doughty,  JM7 

Where  a  person  renders  services  to 
anotherj  relying  solely  upon  his 
generosity,  and  expecting  to  be 
compensated  by  a  legacy,  he  can- 
not, when  disappointed  in  such  ex- 
pectation, maintain  an  action  at 
law  for  the  value  of  his  services. 

A  court  of  equity  will  look  at  all  the 
circumstances  of  the  case,  and  will 
judge  from  them  as  to  the  quo  ani- 
mo  with  which  the  services  were 
rendered;  and  although  a  reason- 
able expectation  was  entertained, 
which  was  disappointed,  will  only 
allow  compensation  if  it  is  equit- 
able that  MII  -li  allowance  should  be 
made.  Grantlin  v.  Heading,  370 

An  old  lady,  upwards  of  eight-five 
vears  of  age,  lived  with  her  son. 
She  placed  money  in  his  hands, 
from  time  to  time,  for  investment; 
he  collected  the  interest,  as  it  was 
due,  and  paid  it  over  to  her.  Thin 
continued  for  eight  years.  An 
allowance  for  commissions  for  such 
service  was  refused.  ib 


One  stockholder  in  a  company,  be- 
cause he  has  an  unsettled  account 
with  them,  or  any  other  matter  of 
dispute,  has  no  right  to  bring  a 
company  into  this  court  to  settle  all 
their  accounts  as  a  company.  Yard 
v.  Ins.  Co.  480 

Admitting  it  to  be  true  that  the  capi- 
tal stock  of  an  insurance  company 
was  not  bona  Jide  paid  in,  and  that 
the  company  commenced  the  busi- 
ness of  insurance  in  violation  of  the 
express  provision  of  the  charter, 
yet  this  court  ought  not  to  interfere 
with  suits  brought  upon  bonds  in  a 
court  of  law  for  the  purpose  of  aid- 
ing the  complainants  to  avoid  their 
payment,  where  it  appears  that  the 
bonds  were  given  in  payment  for 
the  stock  of  the  comjKmy,  that  the 
complainant  received  his  certificate 
of  stock,  and  that  upon  these  bonds, 
as  a  portion  of  the  capital,  the  com- 
pany embarked  in  business.  ib 

The  question  is  a  legal  one,  and  the 
complainant  may  avail  himself  of 
it,  as  far  as  it  is  a  defence  in  the 
suit  at  law.  ib 

Upon  the  ground,  that  it  is  against 
public  policy  to  permit  the  company 
to  enforce  a  bond  given  in  violation 
of  law.  the  complainant  may  have 
the  right  to  defend  himself  at  law 
and  in  equity,  and  yet  not  be  en- 
titled, as  a  complainant  in  this 
court,  to  be  relieved  against  their 
payment.  ib 

As  a  general  mler  courts  of  equity 
will  not  regard  time  in  the  perfor- 
mance of  a  contract.  But  the  par- 
ties may  make  time  the  essence 
of  the  contract,  so  that  the  court 
will  not  interfere  to  aid  the  party 
who  is  in  default,  unless  lie  can 
offer  some  good  excuse,  as  mis- 
take or  accident,  for  such  default. 
Baldwin  v.  Fan.  Fontf,  577 


LEGACY. 

Where  a  legacy  had  l>oon  made  a  lien 
upon  a  fiirm,  which  the  U^stator  de- 
vised to  his  son.  who  was  the  execu- 
tor: and  the  will  dim-tod  the  logaoy 
to  lie  paid  in  throe  nnniial  instal- 
ments without  inton-st.  and  direct- 
ed the  executor  to  invest  th«  same, 
and  apply  the  interest  to  the  wp- 
port  and  education  of  tho  legatee, 
until  she  should  arrive  nt  the  ago  of 
twenty-ono  veurs,  at  which  period 
the  principal  was  to  be  jKiiu;  atul 
subsequently  tho  executor  luurt- 


60C 


INDEX. 


gaged  the  farm,  it  was  held  that 
the  legacy  was  a  subsisting  lien  on 
the  premises,  notwithstanding  a 
final  settlement  of  the  executor  in 
the  Orphans  Court,  in  which  he  had 
prayed  allowance  for  the  legacy; 
the  executor  could  not  release  the 
land  by  simply  charging  the  legacy 
to  himself.  The  will  made  the 
legacy  a  lien  upon  the  land  until  it 
.•was  actually  paid.  Nor  was  the 
land  released  by  a  marriage  settle- 
ment, in  which  the  executor  was 
made  a  trustee  to  secure  to  the  lega- 
tee her  separate  estate  free  from 
the  control  and  liability  of  her  in- 
tended husband,  when  there  was 
nothing  in  the  settlement  to  show 
that  it  was  the  intention  of  the 
parties,  by  that  deed,  to  release  the 
land,  and  to  take  the  personal  se- 
curity of  the  executor  for  the 
legacy,  and  the  legal  construction 
of  the  deed  did  not  necessarily  pro- 
duce that  effect.  Terhune  v.  Col- 
ton,  21 

The  personal  estate  is  the  only  fund 
for  the  payment  of  legacies,  unless 
a  contrary  intention  appears  in  the 
will.  Sims  v.  Sims,  158 

Where  a  legacy  is  made  an  express 
charge  upon  the  land,  if  the  per- 
sonal estate  in  the  hands  of  the  ex- 
ecutor is  sufficient  to  pay  the  legacy, 
and  the  executor  squanders  the  es- 
tate, the  legatee  cannot  resort  to 
the  land.  The  land  is  debtor  for 
the  legacy  only,  and  not  for  the 
misconduct  of  the  executor.  f  6 

Where  the  executor  has  in  his  hands 
funds  sufficient  to  pay  all  the 
legacies,  and  after  paying  some  of 
them  squanders  or  misapplies  the 
residue  of  the  fund,  the  legatees  un- 
paid cannot  resort  to  the  others  for 
contribution ;  the  legatees  who  have 
received  payment  are  entitled  to 
the  benefit  of  their  diligence.  When 
there  is  an  original  deficiency  of 
assets,  the  rule  is  different ;  and  the 
rule  may  have  a  different  applica- 
tion when  there  is  a  participation 
in  misapplying  the  assets  between 
the  executor  and  such  legatees  as 
are  paid  their  legacies.  16 

The  intention  of  the  testator  is  the 
essence  of  ademption  of  a  legacy. 
When  an  advancement  is  relied  up- 
on as  an  ademption,  two  facts  must 
be  established,  the  advancement, 
.  and  the  intention  of  the  testator 
that  it  should  be  in  satisfaction,  or 
a  substitute  for  the  bequest.  ib 

:In  some  cases,  equity  raises  the  pre- 
sumption, and  parol  testimony  is 
admissible,  not  to  raise,  but  to  con- 
i  firm  a  presumption.  t& 


Personal  property  not  specifically 
bequeathed,  must  be  applied  before 
specific  legacies.  Whitehead  v. 
Gibbons,  230 

Where  a  person  renders  services  to 
another,  relying  solely  upon  his 
generosity,  and  expecting  to  be 
compensated  by  a  legacy,  he  can- 
not, when  disappointed  in  such  ex- 
pectation, maintain  an  action  at 
law  for  the  value  of  his  services. 
Grandin  v.  Reading,  370 

A  testator  made  certain  specific  de- 
vises and  bequests  to  several  of  his 
children.  He  then  gave  a  life  es- 
tate to  his  wife  in  his  real  and  per- 
sonal property  not  specifically  dis- 
posed of.  He  then  declared  that  his 
real  and  personal  estate,  after  the 
death  of  This  wife,  unless  his  wife 
chose  to  give  up  the  estate  before 
her  decease,  should  be  sold  and  di- 
vided among  certain  of  his  children ; 
and  then  declares,  that  if  any  of  his 
children  should  die  without  lawful 
issue  of  the  body  begotten,  then  his, 
her,  or  their  share,  or  legacy,  should 
be  equally  divided  among  the  sur- 
vivors, share  and  share  alike.  Held, 
that  he  used  the  term  survivors 
with  reference  to  the  period  when 
the  estate  should  be  divided,  after 
the  happening  of  the  event  men- 
tioned in  his  will,  to  wit,  the  death 
of  his  wife.  Williamson  v.  Cham- 
berlain, 373 


LIEN. 


Where  a  legacy  had  been  made  a  lien 
upon  a  farm,  which  the  testator  de- 
vised to  his  son,  who  was  the  execu- 
tot ;  and  the  will  directed  the  legacy 
to  be  paid  in  three  annual  instal- 
ments without  interest,  and  directed 
the  executor  to  invest  the  same,  and 
apply  the  interest  to  the  support  and 
education  of  the  legatee,  until  she 
should  arrive  at  the  age  of  twenty- 
one  years,  at  which  period  the  prin- 
cipal was  to  be  paid;  and  subsequent- 
ly the  executor  mortgaged  the  farm, 
it  was  held  that  the  legacy  was  a 
subsisting  lien  on  the  premises,  not- 
withstanding a  final  settlement  of 
the  executor  in  the  Orphans  Court, 
in  which  he  had  prayed  allow- 
ance for  the  legacy;  the  executor 
could  not  release  the  land  by  sim- 
ply charging  the  legacy  to  himself. 
The  will  made  the  legacy  a  lien 
uoon  the  land  until  it  was  actually 


IXDEX. 


607 


paid.  Nor  was  the  land  released  by 
a  marriage  settlement,  in  which 
the  executor  was  made  a  trustee  to 
secure  to  the  legatee  her  separate 
estate  free  from  the  control  and  li- 
ability of  her  intended  husband, 
when  there  was  nothing  in  the  set- 
tlement to  show  that  it  was  the  in- 
tention of  the  parties,  by  that 
deed,  to  release  the  land,  and  to 
take  the  personal  security  of  the  ex- 
ecutor for  the  legacy,  and  the  legal 
construction  of  the  deed  did  not  nec- 
essarily produce  that  defect. 

It  was  apparent  that  the  money  had 
never  been  received  to  pay  the  lega- 
cy ;  that  it  existed  in  no  other  way 
than  as  a  debt  due  to  the  legatee, 
secured  upon  the  lands  of  the  execu- 
tor; and  while  that  debt  and  securi- 
ty had  been  assigned  to  the  trustee, 
with  power  to  change  the  security, 
it  never  was  in  fact  changed.  The 
executor  and  trustee,  in  such  a  case, 
cannot  interpose  that  trust  deed  as  a 
defence  against  a  claim  of  the  legacy 
as  a  lien  upon  the  land.  Terhune  v. 
Colton,  21 

An  attorney  has  no  right  to  give  up 
the  security  of  his  clients,  unless  he 
receives  actual  payment,  or  is  spec- 
ially authorized  to  do  so;  but  where 
there  Ls  evidence  enough  of  the  ac- 
quiescence of  the  client  in  the  agree- 
ment, it  may  be  inferred  that  a  so- 
licitor had  special  authority.  ib 

Where  a  trustee  pays  a  debt  which  is 
a  prior  lien  on  the  trust  fund,  and 
which  it  is  necessary  to  pay  in  order 
to  protect  the  fund,  for  the  benefit 
of  the  trust,  the  trustee  is  entitled 
to  be  reimbursed  out  of  the  trust 
fund,  and  this  constitutes  a  first 
lien  on  the  fund.  Speer  v.  Whitfield 
et  al.,  107 

As  a  general  principle,  when  an  exe- 
cution creditor  has  acquired  an 
equitable  lien,  it  cannot  be  destroyed 
or  impaired  bv  the  voluntary  act  of 
the  debtor  or  his  trustee. 

An  equitable  lien  may  bti  lost  by  neg- 
ligence and  unreasonable  delay.  Hnt- 
stetl  v.  Lkii-ison,  'MO 

M.  K.  and  W.  made  an  assignment 
for  the  benefit  of  creditors.  On  the  ! 
personal  property  assigned,  then-  , 
was  a  mortgage,  the  bonn  fitlrx  of 
which  was  not  disputed.  The  assign- 
ee having  sold  the  property,  and 
converted  it  into  money,  the  mort- 
gagee, or  person  claiming  under 
him.  has  an  equitable  lien  on  tlio 
proceeds  of  sale  for  jMivmcnt  of  tin- 
mortgage.  Wilson  v.  Gray,  323  } 


LIMITATION. 

A.  brings  an  action  at  law  against  B. 
B.  files  his  bill  in  this  court,  and  en- 
joins A.  from  prosecuting  his  ac- 
tion at  law.  Afterwards  the  bill  is 
dismissed.  This  court,  upon  a  bill 
filed  by  A.,  will  prevent  B.,  from 
taking  advantage,  by  a  plea  of  the 
statute  of  limitations,  of  the  time 
which  A.  was  enjoined,  by  the  pro- 
cess of  this  court,  from  prosecuting 
his  action  at  law,  if  B.  obtained 
that  advantage  by  the  action  of  this 
court  in  the  suit  instituted  by  B. 
Dou'jkty  v.  Douyhty,  347 


LUNACY. 


A  person  on  trial  under  a  commission 
of  alleged  lunacy  has  a  right  to  be 
present  at  the  trial  to  make  his  de- 
fence, by  himself  or  counsel,  and 
to  examine  witnesses.  In  case  of 
confirmed  and  dangerous  madness, 
notice  may  be  dispensed  with,  but 
then  only  by  the  express  order  of 
the  court. 

No  specific  time  is  fixed  by  the  prac- 
tice of  the  court.  It  must  be  a  rea- 
sonable notice. 

A  notice  given  on  Saturday,  of  the 
execution  of  a  commission  on  Tues- 
day following  is  insufficient. 

But  when  the  alleged  lunatic  appears 
upon  such  noticre  bv  counsel,  and 
makes  no  objection,  but  consents  to 
an  adjournment  for  a  future  day, 
the  insufficiency  of  notice  is  thei-e- 
by  waived. 

The  court,  however,  will  relieve  the 
petitioner,  if  through  inadvertence 
or  mistake  he  has  been  prejudiced, 
but  not  unless  such  mistake  or  pre- 
judice clearlv  apjiears.  The»  oath 
of  his  counsel,  that  he  was  prejudi- 
ced, without  stating  in  what  partic- 
ular. Ls  not  enough.  In  the  matter 
of  Daniel  Vanauken,  an  allajnd 
lunatic,  18fi 

Exceptions  stated  to  the  general  rule, 
tliat  the  opinion  of  a  witness  is  not 
competent  evidence  to  go  to  the 
jury.  H> 

The  charge  of  the  commissioner  to  the 
jury  in  this  case  given,  and  rult>d 
to  be  correct.  i'» 

Whether  tho  alleged  lunatic  may  tr» 
verse  the  inquisition,  is  a  matter  ad 
dressed  to  the  discretion  of  tho  court, 
nnd  if  upon  a  review  of  tho  evidence 
there  exists  a  reasonable  doubt  ax  t*> 
the  correctness  of  th"  finding,  th* 
traverse  should  bo  allowed.  ib 


608 


INDEX. 


A  mere  failure  of  memory  and  decay 
and  feebleness  of  the  intellectual 
faculties  are  not  evidences  of  that 
unsoundness  of  mind  which  will  jus- 
tify a  jury  in  finding  a  man  a  luna- 
tic. I'o  warrant  this,  they  must  be 
such  as  to  import  a  total  depriva- 
tion or  suspension  of  the  ordinary 
powers  of  the  mind.  ib 

The  question,  what  constitutes  un- 
soundness  of  mind,  considered,  ib 

A  petition  for  a  traverse  should  not 
be  sworn  to  by  the  lunatic.  But 
the  court  should  be  satisfied  that  it 
is  in  truth  the  petition  of  the  al- 
leged lunatic.  ib 

Ordered,  in  this  case,  that  the  peti- 
tioner be  produced  before  the  Chan- 
cellor for  examination,  to  ascer- 
tain whether  he  understood  the 
character  of  the  petition,  and  de- 
sired to  traverse.  ib 

After  petition  for  divorce,  on  the 
ground  of  abuse  and  ill-treatment, 
a  motion  to  allow  a  counsel  fee  and 
maintenance  pendente  lite  refused 
against  a  party  who  had  been  de- 
clared a  lunatic  by  the  court.  Mc- 
Ewen  v.  McEwen.  286 


MINES  AND  MINERALS. 


A  paint  stone  which  is  found  in 
strata  below  the  surface  of  the  soil, 
and  distinct  from  the  ordinary 
earth  and  worked  by  the  ordinary 
means  of  mining,  will  pass  under 
the  terms  mines  and  minerals. 
Hartwell  v.  Camman.  128 

A  deed  may  convey  a  distinct  inher- 
itance in  mines,  the  fee  to  the  land 
remaining  in  the  grantor.  When 
not  severed  from  the  general  title  to 
the  lands,  they  will  pass  with  the 
lands  without  being  expressly  men- 
tioned in  the  deed. 

Construction  of  a  deed  conveying 
mines  and  minerals,  and  the  re- 
spective rights  of  grantor  and 
grantee.  ib 

By  a  conveyance  of  all  "mines  and 
minerals,"  the  grant  does  not  em- 
brace anything  in  the  mineral  king- 
dom, as  distinguished  from  what 
belongs  to  the  animal  and  vege- 
table, nor  is  such  a  grant  confined 
to  any  one  of  the  subordinate  di- 
visions into  which  the  mineral  king- 
dom is  subdivided  by  chemists,  ib 

Where  a  term  of  art  is  used  which 
has  a  popular  signification  among 
scientific  men,  parol  testimony  is 

•  admissible  to  ascertain  the  techni- 
•  cal  and  proper  use  of  the  term,  but 


suoh  testimony  is  not  admissible  to 
show  that  the  parties  to  the  writ- 
ing placed  upph  the  term  used  any 
limned  or  definite  meaning.  ib 


MISTAKE. 


Complainant  erected  a  valuable  dwel- 
ling house,  by  mist  ke,  on  the  land 
of  defendant;  defendant  lived  in 
the  vicinity,  saw  complainant  pro- 
gressing from  day  to  day,  with  the 
improvements,  and  admitted  that 
he  did  not  suspect  the  erections  to 
be  upon  his  lot  until  some  time 
after  their  actual  erection,  when, 
by  actual  measurement,  to  his  sur- 
prise, he  discovered  the  mistake. 
The  court  relieved  the  complainant, 
putting  the  defendant  to  as  little 
inconvenience  as  possible.  McKel- 
ivay  v.  Armour.  115 

Parol  evidence  is  admissible  for  the 
pui-pose  of  showing  a  mistake  in  a 
deed.  It  forms  one  of  the  excep- 
sions  to  the  general  rule,  which  ex- 
cludes parol  evidence  offered  to 
vary  a  written  contract.  16 

Where  a  bill  is  filed  for  the  correc- 
tion of  a  mistake  in  the  execution 
of  a  bond,  and  to  restrain  the  de- 
fendants from  taking  advantage  of 
the  mistake  in  certain  suits  at  law, 
the  defendant  may  set  up,  as  a  de- 
fence against  the  complainant's 
right  to  relief,  that  the  bond  was 
procured  by  fraud.  Hogencamp  v. 
Ackerman.  267 


MORTGAGE. 


If  the  mortgagee  purchases  the  mort- 
gaged premises,  subject  to  the  mort- 
yaye,  he  cannot  hold  the  land,  and 
enforce  the  mortgage  debt  against 
the  mortgagor. 

If  the  mortgagee  purchases  the  mort- 
gaged premises  upon  an  execution 
at  law  against  the  mortgagor,  in 
favor  of  a  third  person,  he  pur- 
chases subject  to  the  mortgage, 
and  thereby  extinguishes  his  debt: 
if  he  purchases  upon  an  execution 
at  law  upon  a  judgment  for  his 
mortgage  debt,  then  he  extinguishes 
his  debt  against  the  mortgagor  to 
the  amount  only  he  gives  for  the 
land. 

A  mortgage  was  executed  to  Wil- 
liam Whitfield.  This  mortgage  is 
absolute  upon  the  face  of  it.  But 
it  was  executed  in  trust;  and 
the  trust  is  declared  in  an  mstru- 


609 


ment  of  writing  between  Abraham 
J.  Jerolonian  and  the  mortgagee. 
By  the  plain  construction  of  the 
instrument,  it  secured,  first,  to 
William  VVhitfield,  John  Kennedy, 
and  Abraham  V.  Speer,  such  sum 
or  sums  of  money  as  were  due  and 
owing  to  them,  or  to  either  of  them, 
from  A 1  >i  ;>hum  J.  Jeroloman  at  the 
time  of  its  execution,  as  well  as  all 
such  sums  of  money  as  they  should 
advance  on  account  of  anv  judg- 
ments, or  other  claim,  or  debt,  then 
existing  agahist  'Jeroloman,  and  the 
interest  accruing  thereon ;  and  sec- 
ond, it  secures  to  John  S.  King, 
"William  H.  Brant,  Peter  Cooman, 
and  Minard  Cooman,  the  several 
amounts  of  money  then  due  and 
owing  to  them,  or  either  of  them, 
and  to  Joseph  Budd.  the  sum  of  one 
hundred  dollars.  Held,  the  debt 
due  Speer  at  the  time  of  the  execu- 
tion of  the  writing  has  a  preference 
over  any  advances  subsequently 
made  by  any  of  the  parties  to  the 
instrument.  Speer  v.  Whitjield,  107 

Where  a  mortgagee  has  released 
lands,  primarily  liable  for  his  debt, 
to  the  prejudice  of  another  mort- 
gagee, who  has  a  lien  upon  a  part 
only  of  the  lands  embraced  in  the 
first  mortgage,  the  court  may  pre- 
vent the  first  mortgagee  from  en- 
forcing his  mortgage  upon  the  por- 
tion of  the  land  common  to  both 
mortgages,  until  he  deducts  from 
his  debt  the  value  of  the  land  re- 
leased. But  the  mortgagee  will  not 
be  liable  to  such  consequences,  un- 
less he  has  knowingly  and  wrong- 
fully prejudiced  the  "rights  of  the 
other  mortgagee.  He  must  have 
knowledge  of  the  other  mortgagees' 
rights.  It  he  releases  without  notice 
he  is  not  to  be  a  sufferer.  If  the 
other  mortgagee  wishes  to  protect, 
himself,  he  must  give  notice  of  his 
rights. 

The  statute  does  not  make  the  record 
notice  for  any  such  purpose.  Hlair 
v.  Ward.  119 

A  debtor  has  a  perfect  right  to  prefer 
a  creditor,  and  he  may  make-  that 
preference  by  a  mortgage,  as  well 
us  by  any  other  mode  of  security. 
The  mortgage  will  IK?  a  valid  en- 
cumbrance on  the  premises.  Junes 
v.  Naughriijht , 

tt'hore  the  mortgaceo  asripw  the 
mort^a^'  absolutely  to  ft  third  p»T- 
wm.  he  is  not  n  necessary  |»rty  t-> 
a  fom-losuiv  suit.  Hut  if  tho  nwipu- 
ment  is  not  absolute,  then  he  is  n 
wcefKary  party.  Miller  v.  Hauler- 
son.  «>-u 


M.  K.  and  W.  made  an  assignment 
for  the  benefit  of  creditors.  On  the 
personal  property  assigned,  there 
was  a  mortgage,  the  bona  Jides  of 
which  was  not  disputed.  The  assig- 
nee having  sold  the  property,  ai,d 
converted  it  into  money,  the  niort- 
•  gagee,  or  person  claiming  under 
him,  has  an  equitable  lieu  on  the 
proceeds  of  sale  for  the  payment  of 
the  mortgage.  Wilson  v.  day,  SL3 

The  interest  of  a  mortgagee  in  per- 
sonal property,  wheie  the  possession 
remains  with  the  mortgagor,  and 
before  condition  broken,  cannot  be 
taken  in  execution  as  the  property 
of  the  mortgagee.  A  mortgagors 
interest  in  personal  property  is  the 
subject  of  execution  and  sale,  and 
a  mortgagee's  interest  is  not.  16 

In  New  Jersey,  the  same  doctrine  pre- 
vails as  to  the  respective  rights  of 
mortgagor  and  mortgagee  of  per- 
sonal property,  and  as  to  the  char- 
acter of  their  respective  interests, 
as  governs  mortgages  of  real  pro- 
perty, tfe 

NE  EXEAT. 

Upon  a  bill  filed  for  alimony  only,  the 
court  may  make  an  order  for  a  ne 
exeat  before  alimony  is  fixed.  Yvle 
v.  Yule.  Io8 

The  affidavit  of  the  wife  alone  is  suffi- 
cient to  support  the  order.  id 

The  affidavit  need  not  state,  in  so 
many  words,  that  the  defendant  is 
about  leaving  the  state  to  avi  id  the 
the  jurisdiction  of  the  court ;  it  is 
sufficient,  if  the  facts  seem  to  show 
that  the  defendant's  departui  e  will 
defeat  the  complainant  s  cla.'m,  or 
that  the  defendant  is  leavii  g  the 
state  for  that  purpo.so.  t'6 

The  affidavit  should  show  that  the  de- 
fendant intends  going  abroad.  It 
must  be  inactive  as  to  this  point,  or 
to  his  threats  or  declarations  to 
that  effect,  or  to  facts  evincing  it, 
or  circumstanct -s  amounting  to  it.  16 

In  some  cases  it  will  lie  sufficient  if 
tho  intention  of  the  defendant'* 
going  abroad  is  sworn  to  upon  in- 
formation and  lx>!ief;  but  tln>  writ 
should  not  lx>  issued  in  a  doubtful 
c-aw.  The  debt,  or,  in  n  <WP  \*- 
twwn  husband  and  wife,  the  dut  v 
should  be  certain.  »o 

Th<>  l«:sl«ind  wa»  about  moving  from 
Neunrk  to  the  city  of  New  York, 
ami  «IIK:II  liU  insisting  thiit  tlie  vitV 
should  Kit  with  him.  she  left  her 
hnxbanoii  h<>u-o.  find  filed  her  bill, 
t-'hc  is  not  entitled  to  select  IKT  own 


610 


INDEX. 


place  of  residence,  and  under  such 
circumstances  to  an  order  for  ali- 
mony, ib 


ORDINANCE. 


An  ordinance  of  the  city  of  Perth 
Aniboy,  which  ordained  that  the 
streets  be  graded  and  regulated, 
but  did  not  specify  how,  nor  refer 
to  maps,  profiles,  or  to  any  order  or 
proceeding  by  or  under  the  authori- 
ty of  the  council,  by  which  it  could 
be  ascertained  how  the  grading  was 
to  be  done,  was  held  to  ue  in  viola- 
tion of  the  rights  of  the  land  owners 
in  the  city,  and  unlawful,  as  they 
could  not  comply  with  its  require- 
ments, and  the  act,  if  they  did  not 
do  so  within  two  months,  deprived 
them  of  the  privilege  of  doing  it 
themselves. 

But  although  the  ordinance  is  illegal, 
the  court  will  not  grant  an  injunc- 
tion simply  on  the  ground  of  the 
illegality  of  the  ordinance.  The 
injury  must  be  specified,  and  so 
pointed  out  that  the  court  can  see 
it  must  be  the  inevitable  conse- 
quence of  the  act  threatened  and 
complained  of.  Kearney  v.  An- 
drews, 70 

PARTITION. 


On  a  bill  for  partition,  if  the  title  is 
denied,  and  there  are  serious  doubts 
raised,  the  court  will  not  order  the 
commission :  nor  will  it  dismiss  the 
bill,  but  will  retain  the  bill,  and  af- 
ford the  complainant  an  opportuni- 
ty to  establish  his  title  at  law. 
Obert  v.  Obert,  93 


PARTNERSHIP. 


"Where  a  copartnership  is  not  deter- 
rnmable  at  will,  and  the  court  is  re- 
sorted to  for  the  purpose,  a  receiver 
•will  be  appointed  of  course.  The 
reason  is,  that  whatever  justifies  the 
court  in  decreeing  a  resolution,  es- 
tablishes the  propriety  of  appoint- 
ing a  receiver.  Birdsall  v.  Colie,  63 

But  when  a  partnership  is  dissolved 
by  mutual  consent,  or  determined 
by  the  will  of  either  party,  a  Court 
of  Chancery  will  not,  as  of  course, 
without  any  reason,  except  that 
such  is  the  wish  of  one  of  the  parties 
interested,  assume  the  control  of  the 
business,  and  place  it  in  the  hands 
of  a  mere  stranger.  ib 


The  court  will  appoint  a  receiver 
wherever  it  shall  appear  that  it  is 
necessary  to  do  so  in  order  to  pro- 
tect the  interests  of  the  parties,  ib 

A  participation  in  the  profits  of  busi- 
ness constitutes  a  partnership  as  to 
third  persons;  so  where  the  evi- 
dence in  the  cause  showed  to  a 
reasonable  degree  of  certainty  that 
one  was  to  share  in  the  profits  of  a 
business  carried  on  in  the  name  of 
another,  it  established  the  partner- 
ship. 

Although  the  business  be  carried  on 
in  the  name  of  one  alone,  and  neith- 
er suppose  that  they  are  partners, 
although  they  did  not  intend  to  be- 
come partners,  and,  as  between 
themselves,  were  not  partners,  yet 
the  law  may  hold  them  liable  as 
partners  as  to  third  persons  upon 
an  agreement  to  share  in  the  profits. 
Slieridan  v.  Aledara,  46(J 

Where  money  was  loaned  at  'six  per 
cent.,  but  in  case  the  debtor's  busi- 
ness succeeded,  he  was  to  pay  twen- 
ty-five per  cent.,  such  contract, 
though  usurious  as  to  the  borrower, 
as  to  third  persons  made  the  debtor 
and  creditor  partners.  ib 


PART  PERFORMANCE. 


One  who  enters  into  the  possession  of 
lands  as  tenant,  and  claims  title  and 
possession  by  virtue  of  a  subsequent 
parol  agreement,  partly  carried  into 
execution,  must  establish  the  con- 
tract, by  competent  proofs,  to  be 
clear,  definite,  and  unequivocal  in 
all  its  terms;  and  the  acts  upon 
which  he  relies  as  part  performance 
must  be  precise  and  certain,  and  re- 
ferable exclusively  to  the  contract. 
Cole  v.  Potts,  •  "  67 

Payment  of  the  purchase  money,  or  a 
part  of  it,  is  not  such  a  part  per- 
formance as  will  take  the  case  out 
of  the  statute.  ib 

If  he  relies  upon  possession  as  part 
performance,  he  must  show,  by  un- 
equivocal proof,  that  the  tenancy 
was  abandoned,  and  that  his  posses- 
sion as  a  tenant  was  changed  into 
that  of  a  vendee,  under  the  specific 
contract  he  is  seeking  to  enforce,  ib 

A.  employs  B.,  as  his  agent,  to  pur- 
chase a  house  for  him.  B.  makes 
the  purchase,  takes  the  deed  in  his 
own  name,  and  pays  his  own  money 
for  it.  A.  connot  compel  B.  to  con- 
vey. 

It  is  within  the  statute  of  frauds, 
which  requires  the  contract  to  be  in 
writing. 


IKDEX. 


611 


In  order  to  take  the  case  out  of  the 
statute,  on  the  ground  of  part  per- 
formance, two  things  are  requisite, 
the  terms  of  the  contract  must  be 
established  by  proofs  to  be  clear, 
definite,  and  unequivocal,  and  the 
acts  relied  on  as  part  performance 
must  lie  exclusively  referable  to  the 
contract. 

The  disposition  of  courts  at  the  pres- 
ent day  is  to  limit,  rather  than  ex- 
tend exceptions  to  the  statute,  l^al- 
lace  v.  Brown,  308 

A  person  may  make  an  agreement, 
which  will  be  legally  binding  upon 
him,  to  make  a  particular  disposi- 
tion of  his  property  by  last  will. 

A  court  of  equity  will  decree  the  spe- 
cific performance  of  such  an  agree- 
ment upon  the  principles  which  go- 
vern the  court  in  the  exercise  of  tdis 
branch  of  its  jurisdiction.  Johnson 
v.  Huhbel,  332 

Although  the  agreement  is  by  parol, 
if  there  is  a  part  performance  of 
such  a  character  as,  upon  the  prin- 
ciples recognised  by  the  court,  will 
take  a  parol  agreement  out  of  the 
statute  of  frauds,  then  there  is  noth- 
ing peculiar  about  an  agreement  of 
this  kind  to  exclude  it  from  the 
operation  of  those  principles.  ib 

If  one  party  to  a  parol  agreement  lias 
wholly,  or  partially,  performed  it 
on  his  part,  so  that  its  non-fulfil- 
ment by  the  other  party  is  a  fraud, 
the  court  will  compel  a  performance. 

ib 


PAROL  AGREEMENT. 


A  debt  of  record  cannot  be  released  by 
parol.  How  far  a  declaration,  that 
a  decree  was  satisfied,  would  bind  a 
party  against  one  who  upon  the 
faith  of  it  has  advanced  money,  is 
another  question.  Terhune  v.  Uol- 
ton,  -'I 

One  who  enters  into  the  possession  of 
lands  as  tenant,  and  claims  title 
and  ix)ssossion  by  virtue  of  a  subse- 
quent {wrol  agreement,  partly  car- 
ried into  execution,  must  establish 
the  contract,  by  competent  proofs, 
to  l>e  clear,  definite,  and  unequivo- 
cal  in  all  its  terms,  and  the  acts 
upon  which  ho  relics  as  part  perfor- 
mance must  be  precise  and  certain, 
and  referable  exclusively  to  the 
contract.  Cole  v.  I'ottti,  (57 

Payment  of  tho.  purchase  money,  or 
a  jwrt  of  it,  is  oot  such  a  jxirt  por- 
fi  irinaiiri-  as  will  take  the  ca.se  out 
of  tho  statute.  iti 

If  ho  relies  upon  possession  as  pirt 
performance,  he  must  show  by  un- 


equivocal proof,  that  the  tenancy 
was  abandoned,  and  that  his  jios- 
sessioii  as  a  tenant  was  changed 
into  that  of  a  vendee,  under  the 
specific  contract  he  is  seeking  to 
enforce.  ib 

A  person  may  make  an  agreement, 
which  will  be  legally  binding  upou 
him,  to  make  a  particular  disposi- 
tion of  his  property  by  last  will 

A  court  of  equity  will  decree  the  spe- 
cific performance  of  such  an  agree- 
ment upon  the  principles  which  go- 
vern the  court  in  the  exercise  of 
this  branch  of  its  jurisdiction. 
Johnson  v.  Hubbel,  3&i 

Although  the  agreement  to  pay  is  by 
parol,  if  theib  is  a  part  perform- 
ance of  such  a  character  as,  upon 
the  principles  recognised  by  the 
court,  will  take  a  parol  agreement 
out  of  the  statute  of  frauds,  then 
there  is  nothing  peculiar  about  an 
agreement  of  this  kind  to  exclude 
it  from  the  operation  of  those  prin- 
ciples, ib 

If  one  party  to  a  parol  agreement  has 
wholly,  or  partially,  performed  it 
on  his  part,  so  that  its  non-fulfil- 
ment by  the  other  party  is  a  fraud, 
the  court  will  compel  a  perform- 
ance, ib 

Although  a  party  has  a  right  to  the 
protection  of  the  court,  it  that  pro- 
tection cannot  be  given  him  with- 
out invading  the  rights  of  innocent 
parties,  its  aid  will  be  refused.  ib 

PAROL  EVIDENCE. 


See  PLEADING  AND  EVIDENCE. 
PLEADING  AND  EVIDENCE. 


A  complainant  cannot  invoke  tho  aid 
of  a  court  of  equity  on  the  ground 
that  an  award  was"  illegal,  because 
not  in  pursuance  of  the  submission. 
When  it  api>ears  by  tho  bill  itself, 
that  the  parties  mutually  agmvl  to 
the  course  pursued  by  the  arbitra- 
tors in  tho  matter  complained  of,  it 
would  1)0  against  equity  and  good 
conscience  to  permit  the  complain- 
ant thus  to  repudiate  his  own  acts. 
Vcghtu  v.  HoagUind,  45 

If  tho  defendant  int«'rposos  a  plm  in 
bar  to  tho  wholo  bill,  and  tho  com- 
plainant docs  n«»t  reply,  but  is  dis- 
posed to  quest  ion  in  viiliilitv.  instead 
of  tho  complainant1!  demurring  to 
it,  the  defendant  must  sot  it  down 
for  argument,  and  this  answer*  to 
tho  demurrer  at  law.  If  tho  plea 


612 


INDEX. 


should  ba  decided  not  to  be  good, 
the  defendant  must  answer  the  bill'; 
if  it  is  sustained,  the  complainant 
must  reply  to  it. 

When  he  does  reply  and  taken  issue, 
the  determination  of  that  issue  is 
final.  Flayy  v.  Bonnel.  82 

Where  a  bill  claims  the  execution  of 
a  resulting  trust,  the  facts  from 
which  it  alleges  the  trust  results 
must  be  proved.  A  complainant 
cannot  make  one  case  by  his  bill, 
and  having  failed  to  prove  it,  aban- 
don it,  and  recover  upon  a  different 
one  established  by  the  evidence. 
Andrews  v.  Farnham.  91 

A  complainant  may  have  partition 
and  an  account  by  the  same  bill. 
Obert  v.  Obert.  98 

Parol  evidence  is  not  admissible  to 
explain  a  written  agreement,  when 
there  is  no  ambiguity  apparent  on 
the  face  of  it.  Speer  v.  iVhitJield. 

107 

Case  stated  where  a  cross-bill  is  nec- 
essary, ib 

Parol  evidence  is  admissible  for  the 
purpose  of  showing  a  mistake  in  a 
deed.  It  forms  one  of  the  excep- 
tions to  the  general  rule,  which  ex- 
cludes parol  evidence  offered  to  vary 
a  written  contract.  McKelway  v. 
Armour.  115 

Sarah  Ward  executed  two  bonds  to 
her  son,  J.  L.  Ward,  and  at  the 
same  time,  a  mortgage  to  secure  the 
same  on  three  tracts  of  land.  Ward, 
on  1st  December,  1847,  assigned 
these  bonds  to  complainants,  and  on 
the  same  day  executed  and  deliv- 
ered to  complainants,  as  collateral 
security,  a  mortgage  on  three  tracts 
of  land.  This  mortgage  included 
the  land  in  the  Sarah  Ward  mort- 
gage, together  with  some  other 
land.  All  the  said  lands  had  de- 
scended to  J.  L.  W. ,  as  the  heir  of 
his  father.  The  land  included  in 
the  Sarah  Ward  mortgage  had  been 
conveyed  to  her  by  J.  L.  W.,  and  a 
mortgage  given  ta  secure  the  pur- 
chase money.  Complainants  find 
on  the  record  a  deed,  made  by  J.  L. 
W.  to  Thomas  Cook,  embracing  a 
portion  of  the  land  embraced  by 
the  collateral  mortgage;  but  tins 
deed  was  not  recorded  until  the 
18th  of  January,  1848,  whereas  the 
mortgage  to  complainants  was  re- 
corded on  9th  December,  1847.  De- 
fendants insisted  that  complainants 
had  notice  of  the  conveyance  to 
Cool?  at  the  tima  of  the  execution 
of  their  mortgage,  and  relied  on  the 
testimony  of  John  L.  Ward,  one  of 
the  defendants,  who  was  examined 
subject  to  exception.  Held,  that 


there  being  no  question  as  to  Cook's 
having  lost  his  priority  by  any 
mere  neglect  on  his  part  to  record 
his  deed  with  proper  diligence,  that 
Ward  was  interested  in  the  event 
of  the  suit,  and  was  therefore  not  a 
competent  witness.  Blair  v.  Ward. 

119 

Where  a  term  of  art  is  used  which  has 
a  popular  signification  among  scien- 
tiric  men,  parol  testimony  is  ad- 
missible to  ascertain  the  technical 
and  proper  use  of  the  term,  but 
such  testimony  is  not  admissible  to 
show  that  the  parties  to  the  writ- 
ing placed  upon  the  term  used  any 
limited  or  derinite  meaning.  Hart- 
well  v.  Cam/nan.  1^8 

When  parol  testimony  admissible  to 
dispel  a  doubt  upon  the  true  sense 
and  meaning  of  words.  ib 

Parol  testimony  sometimes  admitted 
ex  necessitate,  and  when  the  ambi- 
guity in  an  instrument  is  created 
by  extrinsic  evidence,  it  may  be 
removed  by  the  same.  ib 

In  some  cases  equity  raises  a  pre- 
sumption, and  parol  testimony  is 
then  admissible,  not  to  raise,  but  to 
confirm  a  presumption.  Sims  v. 
Sims.  158 

Exceptions  stated  to  the  general  rule, 
that  the  opinion  of  a  witness  is  not 
competent  evidence  to  go  to  the 
jury.  In  tlie  matter  of  Daniel 
Vanauken,.  186 

E  E  went  to  the  office  of  S.,  a  scriv- 
ener, who  drew  her  will,  and  after 
it  was  executed,  S.,  at  the  request 
of  E.  E. ,  put  it  in  his  private  secre- 
tary witu  his  private  papers  for 
safekeeping.  To  the  knowledge  of 
S. ,  the  will  was  never  sent  for,  or 
taken  away  by  E.  E.,  and  during 
f requeat  conversations  between  E. 
E.  and  S.,  the  will  was  spoken  of. 
E.  E.  dies,  and  S.,  upon  searching 
for  the  win,  fiads  it  gone  from  the 
place  where  he  deposited  it,  and 
upon  search  cannot  find  it.  He 
states,  under  oath,  that  he  believes 
the  will  to  have  been  clandestinely 
taken  from  his  secretary :  held,  that 
the  presumption  is  that  this  was 
the  last  will  of  E  E,  and  unless 
that  presumption  is  overcome  in 
some  legal  way,  will  be  established. 

The  evidence  in  this  case  stated,  and 
the  reasons  given  for  the  conclu- 
sion, that  the  evidence  does  not 
overcome  the  presumption  in  favor 
of  the  alleged  paper  being  the  last 
will  of  E.  E.  Hildreth  v.  Schillin- 
ger.  196 

Although  the  general  rule  is,  that  the 
answer  of  a  defendant,  so  far  as  it  is 
responsive  to  the  bill,  is  evidence  for 
the  party,  it  is  no  evidence  when  it 


IXDEX. 


613 


asserts  a  right  affirmatively  in  op- 
position to  the  complainant's  de- 
mand. 

So  where  the  defendant  was  called 
upon  to  disclose  what  consideration 
he  paid  for  the  assignment   of  a 
mortgage,  and  answered,   that  he 
paid  no  consideration  at  the  time, 
but  merely  promised  that  he  would  j 
make  certain  payments  and   per- 
form certain  duties  at  a  future  time,  i 
his  allegation,  that  he  has  perform-  ] 
ed  his  promise,  cannot  avail  him;  •. 
he  is  bound  to  establish  the  fact  by  I 
proof.     Fisler  v.  Porch,  24o  \ 

The  fact  as  to  whether  the  assignment 
was  intended  as  an  absolute  one,  or 
as  a  mere  authority  to  enable  the 
defendant  to  collect,  being  doubtful  | 
from  the  evidence,  the  court  direct- 
ed an  issue.  16 

Two  complainants  with  distinct  causes 
of  action,  alleging  distinct  injuries, 
cannot  unite  in  the  same  bill.  To 

•  authorize  them  to  join  as  complain- 
ants, their  cause  of  action  must  be 
the  same,  the  injury  the  same,  and 
they  must  be  entitled  to  the  same 
remedy.  Plum  v.  Morris  Canal 
and  Banking  Co.  250 

Charges  of  adultery  are  improper  in 
a  bill  which  prays  for  a  divorce  a 
inensa  et  thbro  only.  Snocer  v. 
Snover,  2G1 

So  much  of  the  evidence  as  related  to 
acts  of  adultery  suppressed.  t°6 

If  a  defendant  submits  to  answer,  the 
general  rule  is,  he  is  bond  to  answer 
every  immaterial,  as  well  as  mater- 
ial statement  of  the  bill.     Hogen-  \ 
camp  v.  Ackerman,  '£n 

All  bills  are,  in  their  nature,  bills  of 
discovery.    Some  are  bills  for  dis- 
covery purely.     When  the  subject 
matter  is  one    which    in  properly 
cognizable  at  law  only,  and  adequ- 
ate relief  can   be  given    there.    11 
Court  of  Chancery  frequently  takes  ; 
jurisdiction,   in  ordftr  tliat  a   dis-  i 
covery  may  be  had  on  the  oath  of  ' 
a  party,  or  to  comi>el  the  production  j 
of  palters  and  documents.     The  end  j 
for  which  the  jurisdiction  of  the  | 
court  was  Invoked  having  been  at-  i 
taincd,  the  party  seeks  his  redress 
in  the  pro]>cr  tribunal  tit  law. 

A  mere  bill  of  discovery  cannot  pro- 
perly pray  for  relief.  When*.  njx>n 
the  "fact*"  stated,  the  relief  prayed 
for  by  the  bill  Is  pn>|icr:  the  bill  is 
Homething  more  than  a  mere  bill  <>f 
discovery.  lAtlle  v.  ( '<xniri;  '2T.\ 

The  witnesses,  by  whom  toe  defend- 
ant endeavored  to  prove  that  he 
had  paid  |tart  of  the  purchase  nut- 

VOL  ii.  3 


ney  for  the  property  in  dispute,  re- 
lied upon  conversations  had  with 
the  complainants  and  upon  declara- 
tions they  had  made.  The  evidence 
was  not  satisfactory,  and  the  con- 
versations and  declarations  admit- 
ted of  a  different  construction. 

Held,  that  as  the  defendant  had  the 
opportunity  of  stating,  in  his  an- 
swer, when,  where,  and  how  he 
l>aid  any  part  of  the  purchase  mo- 
ney, tliat  the  answer  amounted 
pretty  much  to  a  confession  of  the 
case  made  by  the  bill.  Heyde  v. 
EMers,  283 

Depositions  taken  on  a  preliminary 
matter,  after  bill  filed,  and  before 
the  time  had  expired  for  any 
further  pleading,  were  permitted  to 
be  read  on  the  final  hearing,  so  far 
as  they  were  relevant  to  the  mat- 
ters in  issue,  and  which  were  in- 
volved in  tiie  preliminary  matter. 
Holcombe  v.  Holcombe,  2b4 

It  is  not  enough  for  the  bill  to  show 
that  the  debtor  has  made  a  fraudu- 
lent disposition  of  any  particular 
portion  of  his  property  to  entitle 
the  creditor  to  the  aid  of  a  court  of 
equity  ;  he  must  show  that  such  dis- 
position embarrasses  him  in  obtain- 
ing satisfaction  of  his  debt.  Facts 
must  be  stated  from  which,  at  least, 
the  inference  may  bo  drawn,  that 
the  aid  of  a  court  of  equity  is  re- 
quired to  give  the  judgment  its 
legal  and  full  effect. 

Bill  defective  on  demurrer.  Dunham 
v.  Vox,  437 

The  objection  to  a  witness  on  the 
ground  of  incompetency,  on  ac- 
count of  his  being  a  partner,  not 
made  until  after  the  direct  examin- 
ation, is  not  well  taken  in  |x>int  of 
time.  A  i>arty  cannot  siKvulato  by 
waiting  to  disc-over  whether  the 
testimony  of  a  witness  is  favorable 
or  unfavorable,  and  then  interposes 
his  objection  at  pleasure.  Sheridan 
v.  Mcdam,  WJ 

evidence  is  admissible  for  the 
purpose  of  establishing  an  allegation 
of  fraud  in  the  inception  of  a  n«- 
lea.sc>.  M<trtin  v.  KighUr,  510 

Parol  evidence  Is  not  admissible  to 
show  tliat  the  i-onsideration  ]«v*.ing 
lietwwn  the  |«rtirs,  und  the  terms 
UJKUI  which  «  conveyance  in  ex- 
jimwtl  to  have  Ix-on  made,  are 
totally  different  and  contradictory 
to  the  deed  itself. 

The  American  authorities  nro  more 
liberal  than  the  Knglislf,  in  admit- 
ting |>orol  testimony  f<>r  HOIUO  |>ur- 
relating  to  the  conaiderutiou 


F 


611 


INDEX. 


expressed    in  a  deed.     Adams  v. 
Hudson  (Jo.  Bank,  535 


POWER  OF  APPOINTMENT. 


Hope  Cowperthwait,  by  her  will,  di- 
rected her  trustee  to  pay  a  certain 
fund,  as  follows:  "  unto  such  of  the 
brothers  and  sisters  of  my  daughter' 
Haunah  and  their  children,  and  in 
such  proportions  as  my  said  daugh- 
ter H.  snail,  by  her  last  will  and 
testament,  or  writing  in  nature 
thereof,  signed  by  her  naud,  and  at- 
tested by  two  credible  witnesses, 
direct  and  appoint. " 

This  language  gives  to  the  donee  a 
discretion  as  to  a  selection  between 
the  objects  named.  Lippincott  v. 
Ridgway,  104 

After  the  language  quoted  above,  fol- 
lows "  my  will  being  that  my  said 
daughter  shall  in  such  case  have 
power  to  dispose  of  the  same  among 
her  brothers  and  sisters,  and  their 
children,  in  such  proportion  as  she 
may  think  fit,  but  to  no  other  per 
son  or  persons  whatsoever."  ib 

This  limited  the  power  of  appoint- 
ment, and  entitled  each  of  the  broth- 
ers and  sisters  of  Hannah  Lippin- 
cott to  a  portion  of  the  fund. 


PRACTICE. 


If  the  defendant  interposes  a  plea  in 
bar  to  the  whole  bill,  and  the  com- 
plainant does  not  reply,  but  is  dis- 
posed to  question  its  validity,  in- 
stead of  the  complainant's  demur- 
ring to  it,  the  defendant  must  set  it 
down  for  argument,  and  this  an- 
swers to  the  demurrer  at  law.  If 
the  plea  should  be  decided  not  to  be 
good,  the  defendant  must  answer 
the  bill ;  if  it  is  sustained,  the  com- 
plainant must  reply  to  it.  Flayg  v. 
Bonnel,  82 

When  he  does  reply  and  takes  issue, 
the  determination  of  that  issue  is 
final.  il 

Where  an  injunction  has  been  dis- 
solved for  want  of  equity  in  the 
bill,  the  court  will  not  grant  an  ex 
parte  injunction  upon  an  amended 
bill,  or  upon  a  new  bill  supplying 
that  equity.  Horner  v.  Leeds,  80 

Although  an  ejectment  suit  does  not 
conclude  the  parties  from  further 
investigation,  this  court  will  look  at 
the  questions  which  were  really  in- 
volved in  that  suit;  and  if  the  legal 


question  as  to  the  title,  which  is 
raised  by  the  bill,  was  decided  by 
the  court  of  law,  and  the  party  had 
by  the  judgment  and  process  of  the 
court  been  put  in  possession,  this 
court  cannot  require  better  proof 
of  legal  title. 

On  a  bill  for  partition,  if  the  title  is 
denied,  and  there  are  serious  doubts 
raised,  the  court  will  not  order  the 
commission:  nor  will  it  dismiss  the 
bill,  but  will  retain  the  bill,  and  af- 
ford the  complainant  an  opportuni- 
ty to  establish  his  titie  at  law. 
U  ert  v.  Ouert,  <J8 

Case  stated  where  a  cross-bill  is  neces- 
sary. Xpeer  v.  Whitjield  et  al.,  107 

Upon  a  bill  filed  for  alimony  only, 
the  court  may  make  an  order  for  a 
ne  exeat  before  .limony  is  fixed. 
Yule  v.  Yule,  i&j 

The  affidavit  of  the  wife  alone  is  suffi- 
cient to  support  the  order.  i.i 

The  affidavit  need  not  state,  in  so 
many  words,  that  the  defendant  is 
about  leaving  the  state  to  avoid 
the  jurisdiction  of  the  court;  it  is 
sufficient,  if  the  facts  seem  to  show 
that  the  defendant's  departure  will 
defeat  the  complainant  s  claim,  or 
that  the  defendant  is  leaving  the 
state  for  that  purpose.  ib 

The  affidavit  should  shew  that  the  de- 
fendant intends  going  abroad.  It 
must  be  positive  as  to  this  point,  or 
to  his  threats  or  declarations  to  that 
effect,  or  to  facts  evincing  it,  or  cir- 
cumstances amounting  to  it.  ib 

In  some  cases  it  will  be  sufficient  'if 
the  intention  of  the  defendant's 
going  abroad  is  sworn  to  upon  in- 
formation and  belief;  but  tue  writ 
should  not  be  issued  in  a  doubtful 
case.  The  debt,  or,  in  a  case  be- 
tween husband  and  wife,  the  duty, 
should  be  certain.  i  > 

The  husband  was  about  moving  from 
Newark  to  the  city  of  New  York, 
and  upon  his  insisting  that  the  wife 
should  go  with  him,  she  left  her 
husband's  house,  and  filed  her  bill. 
She  is  not  entitled  to  select  her  own 
place  of  residence,  and  under  such 
circumstances  to  an  order  for  ali- 
mony, i  > 

A  person  on  trial  under  a  commission 
of  alleged  lunacy  has  a  right  to  be 

E resent  at  the  trial  to  make  his  de- 
vice, by  himself  or  counsel,  and  to 
examine  witnesses.  In  case  of  con 
firmed  and  dangerous  madness, 
notice  may  be  dispensed  with,  but 
then  only  by  the  express  order  of 
the  court.  In  the  matter  of  Daniel 
Vanauken,  186 

No  specific  time  is  fixed  by  the  practice 


INDEX. 


615 


of  the  court.  It  must  be  a  reasona- 
ble notice.  t'6 

A  notice  given  on  Saturday,  of  the 
execution  of  a  commission  on  Tues- 
day following  is  insufficient.  16 

But  when  the  alleged  lunatic  appears 
upon  such  notice  by  counsel,  and 
makes  no  objection,  but  consents  to 
an  adjournment  for  a  future  day, 
the  insufficiency  of  notice  is  thereby 
waived.  io 

The  court,  however,  will  relieve  the 
petitioner,  if  through  inadvertence 
or  mistake  he  has  been  prejudiced, 
but  not  unless  such  mistake  or  pre- 
judice clearly  appears.  The  oath  of 
his  counsel,  that  he  was  prejudiced, 
without  stating  in  what  particular, 
is  not  enough.  io 

Whether  the  alleged  lunatic  may  tra- 
verse the  inquisition,  is  a  matter  ad- 
dressed to  the  discretion  of  the 
court,  and  if  upon  a  review  of  the 
evidence  there  exists  a  reasonable 
doubt  as  to  the  correctness  of  the 
finding,  the  traverse  should  be  el- 
lowed.  t>i 

A  petition  for  a  traverse  should  not 
be  sworn  to  by  the  lunatic.  But 
the  court  shoud  be  satisfied  that  it 
is  in  truth  the  petition  of  the  alleg- 
ed lunatic.  ib 

Ordered,  in  this  case,  that  the  peti- 
tioner be  produced  before  the  Chan- 
cellor for  examination,  to  ascertain 
whether  he  understood  the  charac- 
ter of  the  petition,  and  desired  to 
traverse.  ib 

There  is  no  reason  for  the  court  sul>- 
mitting  the  question  of  fact,  wheth- 
er a  will  lias  been  cancelled,  or  sur- 
reptitiously destroyed,  to  a  jury, 
where  the  evidence  is  such  as  to  cre- 
ate no  embarrassing  doubt  in  the 
mind  of  the  court.  Hildreth  v, 
Schillinyer.  I'M 

The  fact  as  to  whether  the  assignment 
was  intended  as  an  absolute  one,  or 
as  a  more  authority  to  enable  tho 
dofendantt  to  collect,  being  doubt- 
ful from  the,  evidence,  the  court  di- 
rected an  issue.  Fialer  v.  J^nrch,  ii-fci 

Whore  a  bill  prays  for  partition,  and 
the  defendants  deny  complainant's 
titlr.  if  tin-  title  in  dispute  in  an 
equitable  one,  it  is  tho  duty  of  tho 
court  to  settle  it.  If  it  is'  a  legal 
title,  the  court  may  dismiss  tho  bill, 
or  may  retain  tho  cause,  and  afford 
the  jKirt  v  mi  opportunity  of  settling 
his  title  at  law. 

But  the  bare  denial  of  tho  complain- 
ant'stitlo  is  no  ol>staclo  to  tbfl  court '• 
pnxf  •Ming.  The  defendant  must  an- 
Mwor  the  bill,  aiul  if  ho  sots  upu  title 
adverse  to  the  complainant,  or  di»- 


putes  the  complainant's  title,  he 
must  discover  his  own  title. 
If  when  the  titles  are  spread  before 
the  court  upon  the  pleadings,  the 
•court  can  see  there  is  no  valid  legal 
Objection  to  the  complainant's  title, 
there  is  no  reason  why  the  court 
should  not  proceed  to  order  the 
partition. 

But  where  there  were  serious  ques- 
tions, both  of  law  and  fact,  involv 
ed  in  the  controversy  between  the 
parties  as  to  the  title,  the  court  re- 
tained the  bill,  and  gave  the  itarties 
an  opportunity  of  settling  the  title 
at  law.  Lucas  v.  Kiiig,  277 

Depositions  taken  on  a  preliminary 
matter,  after  bill  filed,  and  before 
the  time  had  expired  for  any  f  ur  t  her 
pleading,  were  i>ermitted  to  be  read 
Oft  the  final  hearing,  so  far  as  they 
were  relevant  to  the  matters  in  Is- 
sue and  which  were  involved  in  the 
preliminary  matter.  JJolcuiiibe  v. 
Holcombe,  2S4 

After  petition  for  divorce,  on  the 
ground  of  abuse  and  ill  treatment, 
a  motion  to  allow  a  counsel  fee  ana 
maintenance  pendent e  lite  refused 
against  a  party  who  had  been  de- 
clared a  lunatic  by  the  court. 

Tho  order  implies  a  default  and  neg- 
lect of  a  moral  obligation  on  the 
part  of  the  defendant,  which  can- 
not be  imputed  to  a  lunatic.  Mo 
Kicen  v.  McEwen,  I&O 

Where  the  mortgagee  assigns  tho 
mortgage  absolutely  to  a  t  Inn  1  per 
son,  ho  is  not  a  necessary  i>arty  to  a 
foreclosure  suit.  But  if"  the  assign- 
ment is  not  absolute,  then  lie  is  a 
necessary  party.  AlilU-r  v.  liender- 

IWO 

A  judgment  and  execution  creditor 
of  the  mortgagee  may  tile  a  bill  of 
discovery  against  an  alleged  fraud- 
ulent assignee  of  tho  mortgagee, 
and  if  the  assignment  is  fraudulent, 
the  creditor  is  entitled  to  the  mort- 
gage fund.  Tho  statute  avoid*  nil 
difficulty  which  might  luivo  .  \  ,-•.  •  1 
to  a  creditor's  maintaining  his  bill 
for  a  discovery  as  to  proit-rty  not 
subject  to  execution.  IVifaun  v. 
G'lfij/, 

A  Mibptrna  must  l>o  tnkon  out  with 
the  injunction,  and  mndo  returna- 
ble within  tho  time  prescribed  by 
the  nilo  for  a  return  of  wrvico  of 
the  injunction. 

Tho  rule  roquinw  the  injunction  to  ha 
wrvtsl  within  ton  day*  uftor  the  i«- 
Buing  thereof,  and  a  return  of  nor- 
vitv  mode  t«i  thoiNHirt  within  twoii- 
tv  davH  Hftor  Mich  wrvieo.  l*f  v. 
(''niifill.  Wtl 

A.  bi  iii£*an  action  at  lawagninut  B.  1J. 


C16 


INDEX. 


files  1iis  bill  in  this  court,  and  en- 
joins A.  from  prosecuting  his  ac- 
tion at  law.  Afterwards  the  bill  is 
dismissed.  This  court,  upon  a  bill 
filed  by  A.,  will  prevent  B.  frozn 
taking  advantage,  by  a  plea  of  the 
statute  of  limitations,  of  the  time 
which  A.  was  enjoined,  by  the  pro- 
cess of  tliis  court,  from  prosecuting 
his  action  at  law,  if  b.  obtained 
that  advantage  by  the  action  of 
this  court  in  tne  suit  instituted  by 
B.  DoughtiJ  v.  Dowjhhj.  347 

An  old  lady,  upwards  of  eighty-five 
yeai-s  of  age,  lived  with  her  son. 
fcttie  placed  money  in  his  hands  from 
time  to  time,  for  investment:  he 
collected  the  interest  as  it  was  due, 
and  paid  it  over  to  her.  This  con- 
tinued for  eight  years.  An  allow- 
ance for  commissions  for  such  ser- 
vice was  refused.  Grandin  v. 
Reading.  370 

On  a  bill  tiled  on  behalf  of  an  infant 
complainant  to  compel  executors 
and  trustees  under  a  will  to  account 
for  the  estate  of  the  testator  which 
has  come  to  their  hands,  and  for 
the  execution  of  their  trust,  com- 
plainants are  entitled  to  an  account 
as  a  matter  of  course.  Holcombe 
v.  Coryell.  392 

The  general  rule  is,  that  in  order  to 
obtain  the  dissolution  of  an  injunc- 
tion, all  the  defendants  must  an- 
swer the  equi  ty  of  the  bill.  But  the 
qualification  of  the  rule  is,  that  it  is 
enough  if  those  defendants  answer 
upon  whom  the  gravamen  of  the 
charge  rests.  Adams  v.  Hudson 
County  Bank.  535 

The  filing  of  a  cross-bill  does  not,  as 
a  matter  of  course,  stay  the  pro- 
ceedings in  the  original  suit. 

If  the  party  filing  the  cross-bill 
wishes  to  stay  the  cause  upon  the 
original  pleadings,  he  should  give 
notice,  and  apply  to  the  court  for 
an  order  to  that  effect.  Williams 
v.  Carle  543 

Where  the  cross-bill  was  not  filed  un- 
til a  year  after  the  filing  of  the 
original  bill,  and  after  the  proofs 
had  been  taken,  and  the  original 
cause  .noticed  for  hearing,  and  a 
proper  decree  could  be  made  with- 
out the  necessity  of  a  cross-bill,  the 
Chancellor  would  not  delay  the 
hearing  on  the  original  bill  on  the 
ground  that  the  plaintiffs  had  not 
answered  the  cross-bill.  By  WIL- 
LIAMSON, Chancellor.  Hi 

Where  a  cross-bill  was  filed  by  two  of 
the  defendants,  who  had  put  in 
their  answers  disclaiming  any  in- 
terest in  the  original  suit,  and  the 
cross-bill  alleged  that  the  answers 
were  filed  through  mistake,  &c., 
the  pleadings  were  incongruous 


and  irregular:  the  proper  course  is 
to  apply  for  leave  to  withdraw 
their  answers.  16 


RAILROAD. 


See  CORPORATION. 


The  Morris  and  Essex  Railroad  Com- 
pany have  no  right  to  occupy  or  use 
Broad  and  Centre  streets,  in  the 
city  of  Newark,  in  the  manner  the 
same  are  now  appropriated  by 
them,  without  the  consent  of  the 
mayor  and  common  council  of  the 
city  of  Newark.  Morris  and  Es- 
sex Railroad  Company  v.  Newark. 

352 

The  legislature  has  the  power  to  au- 
thorize the  use  of  a  public  highway 
for  the  purpose  of  a  railroad,  in 
such  a  manner  as  not  entirely  to  de- 
stroy its  use  in  the  ordinary  mode. 
The  use  of  public  highways  belongs 
to  the  public,  but  they  have  not 
been  dedicated  to  any  particular 
mode  of  travel  or  use.  It  is  perfect- 
ly consistent  with  the  purposes  for 
which  they  were  originally  desig- 
nated and  intended  that  the  public 
authorities,  who  have  the  control  of 
them  as  public  highways,  should 
adapt  them  in  their  use  to  the  con- 
venience and  improvement  of  the 
age.  i/i 

The  legislature  must  be  the  judges  as 
to  the  benefit  to  the  public,  and  to 
their  authority  individuals  and  the 
public  must  submit.  i  /> 

The  complainants  were  authorized  to 
construct  a  railroad  from  Morris- 
town  to  Newark.  That  was  the  ob- 
ject of  their  incorporation ;  and  it  is 
manifest,  from  the  whole  act.  that 
it  was  the  intention  of  the  legisla- 
ture to  confer  all  the  powers  neces- 
sary to  enable  the  corporators  to 
carry  out  the  object  for  which  they 
were  incorporated.  But  it  does  not 
follow  that  because  the  legislature 
intended  to  confer  upon  the  compa- 
ny all  the  powers  necessary  for  them 
to  carry  out  the  object  for  which 
they  were  incorporated,  that  they  are 
therefore  necessaril yclothed  with  all 
powers  to  meet  that  necessity ;  and 
that  when  not  expressed,  such  pow- 
ers are  to  be  derived  by  implica- 
tion. In  a  limited  sense,  the  prop- 
osition is  true,  when  the  power 
sought  to  be  implied  does  not  take 
away  or  impair  the  legal  rights  of 

.  individuals  or  of  any  other  corpora- 
tion. ''» 

The    public    rights  in  the   highways 


INDEX. 


C1T 


of  the  state  can  be  impaired  or  in- 
terfered with  by  nothing  short  of 
the  authority  conferred  by  the  sov- 
ereign power.  That  authority  must 
be  expressly  given ;  or  if  conferred 
by  implication,  it  must  be  a  neces- 
sary implication.  ib 

Held,  that  the  right  Ls  not  given  by 
this  charter  in  express  terms,  and  it 
cannot  be  implied,  frorn»  any  of  its 
provisions,  to  appropriate,  for  the 
purpose  of  their  railroad,  more  than 
one  half  mile  of  the  principal  pub- 
lic highway  of  Newark,  without  the 
consent  of  the  appropriate  public 
authorities  of  the  City. 

That  the  acts  of  defendants,  upon 
which  complainants  rely  as  estab- 
lishing consent,  are  not  sufficient. 
There  was  no  license  given  to  the 
company,  either  by  parol  or  in 
writing;  and  no  fraud  can  be  in- 
ferred from  the  fact,  that  the  de- 
fendants did  not  interfere,  but 
stood  by  in  silence,  while  the  com- 
plainants expended  their  money  in 
the  construction  of  their  road  upon 
the  public  highways. 

There  is  no  legislative  sanction,  either 
in  the  supplement  of  3d  March, 
1836,  or  in  the  further  supplement 
of  22d  February,  1X3$,  to  the  com- 
pany's occupying  any  public  high- 
way, without  first  obtaining  the 
consent  of  the  proper  legal  authori- 
ties. They  will  not  warrant  such 
a  construction.  ib 


RECEIVER 


Where  a  copartnership  is  not  deter- 
tninable  at  will,  and  the  court  is  re- 
sorted to  for  the  purpose,  a  receiver 
will  be  appointed  of  course.  The 
reason  is,  that  whatever  justifies 
the  court  in  decreeing  a  dissolution, 
establishes  the  propriety  of  appoint- 
ing a  receiver.  Birdsall  v.  Colie,  153 

But  when  a  partnership  is  dissolved 
by  mutual  consent,  or  determined 
by  the  will  of  either  party,  a  Court 
of  Chancery  will  not,  as  of  course, 
without  any  reason,  except  that 
si  id  i  is  the  wish  of  ono  of  the  parties 
interests!,  assume  the  control  of 
the  businesH.  and  place  it  in  tho 
hands  of  a  rnero  stranger.  »'• 

Tho  court  will  appoint  a  receiver 
wherever  it  shall  appear  that  it  in 
nectimarv  to  do  HO  in  order  to  pro- 
tect the  Interest  of  the  jwrtie*.  ib 


RECORD,  REGISTRY. 

Where  a  mortgagee  has  released 
lands,  primarily  liable  for  his  debt, 
to  the  prejudice  of  another  mortga- 
gee, who  has  a  lien  upon  a  part  only 
of  the  lands  embraced  in  the  first 
mortgage,  the  court  may  prevent 
the  first  mortgagee  from  enforcing 
his  mortgage  upon  the  portion  of 
tho  land  common  to  both  mortgages 
until  he  deducts  from  his  debt  the 
value  of  the  land  released.  But  tho 
mortgagee  will  not  be  liable  to  such 
consequences,  unless  he  has  know- 
ingly and  wrongfully  prejudiced 
the  rights  of  the  other  mortgagee. 
He  must  have  knowledge  of  tho 
other  mortgagees'  rights.  If  he  re- 
leases without  notice,  he  is  not  to 
be  a  sufferer.  If  the  other  mortga- 
gee wishes  to  protect  himself,  he 
must  give  notice  of  his  rights. 

The  statute  does  not  make  the  record 
notice  for  any  such  purpose.  Blair 
v.  Ward,  119 

To  destroy  the  title  acquired  by  prior 
registry,  it  is  necessary  that  the 
party  should  have  notice  of  a  prior 
subsisting  outstanding  title.  It 
is  not  enough  that  ho  has  notice 
that  a  prior  deed  has  been  executed, 
if  the  notice  conveys,  also,  the  in- 
formation that  the  title  is  not  in 
existence.  Holmes  v.  Stout,  41U 

The  ground  ujx>n  which  the  title  ac- 
quired by  a  prior  registry  of  a  deed 
is  lost,  in  case  of  notice  to  the 
second  grantee  of  tho  existence  of 
the  prior  conveyence,  is  that  it  is  a 
fraud  in  the  second  grantee  to  take 
a  deed  knowing  or  having  reason  to 
siisjiect  the  existence  of  the  prior 
title.  ili 

Unless  the  information  given  con- 
cerning the  existence  of  tho  pre- 
vious conveyance  was  of  KUCII  a 
ehurwter  as  to  taint  hLs  conduct 
with  fraud,  as  against  those  claim- 
ing under  the  prior  till.-,  the  notice 
cannot  affect  tho  validity  of  hU 
titlo.  ib 

Possession  is  sometimes  notice  of  claim 
of  titlo  sufficient  tn  put  a  purHiaw>r 
on  inquiry ;  but  it  must  I »•  mi  nctunl 
possession  manifesto. 1  by  not*  rintM 
acts  of  ownership,  Mic-li  as  would 
naturally  bo  ol«s»-rve*l  by,  and 
known  to  tho  public.  .  i'6 

Cutting  woo*!  occasionally,  under  cir- 
cumstances which  mi.- lit  be  regard- 
ed as  MO  many  tre«iia.snp«t  quit**  «n 
probably  as  acts  of  own<>r>hfp,  U 
not  evidence  of  Mich  iwxwe-wion.  16 

Tho  grantee  of  ft  <<f>nn  fltlr  piirelutM»r 
without  notice  U  not  to  be  charged 


613 


INDEX. 


with  the  encumbrance  or  fraud,  al- 
though directly  known  to  him  be- 
fore he  acquired  his  title;  otherwise 
the  loss  must  be  visited  upon  the 
bona  fide,  purchaser,  as  he  would 
thereby  be  obliged  to  keep  the  prop- 
erty, or  to  sell  it  at  such  a  price  as 
would  enable  his  purchaser  to  dis- 
charge the  encumbrance  or  purge 
the  fraud.  ib 


RELEASE. 


A  debt  of  record  cannot  be  released 
by  parol.  How  far  a  declaration, 
that  a  decree  was  satisfied,  would 
bind  a  party  against  one  who  upon 
the  faith  of  it  has  advanced  money, 
is  another  question.  Terhune  v, 
Cotton,  21 

Payment  by  the  debtor  operates  for 
the  benefit,  and  as  a  release  in  favor 
of  creditors  having  liens  on  the 
same  fund  bound  by  the  judgment. 
Stout  v.  Vankirk,  79 

Parol  evidence  is  admissible  for  the 
purpose  of  establishing  an  allega- 
tion of  fraud  in  the  inception  ot  a 
release. 

Where  the  fact  was  established  that 
the  parties  to  a  general  release,  at 
the  time  of  the'execution  of  it,  un- 
derstood perfectly  that  the  object, 
and  the  sole  object,  was  to  make 
the  relessee  competent  as  a  witness 
in  a  pending  suit,  it  cannot  be  used 
to  bar  a  recovery  on  a  bond  and 
mortgage. 

That  the  relessee  intended  at  the  time 
to  make  use  of  the  opportunity  to 
obtain  a  general  release,  and  turn 
the  transaction  from  an  innocent  to 
a  fraudulent  purpose,  makes  him  a 
fraud  doer.  Martin  v.  Righter,  510 


SALE. 


Where  the  testator  directs  a  sale  of 
land  to  be  made,  and  the  proceeds 
to  be  divided  among  his  heirs  at 
law.  they  may  elect  to  take  the 
lands,  and  a  court  of  equity  will  se- 
cure to  them  the  benefit  of  that 
election.  So  where  all  interested 
had  entered  into  an  agreement  to 
divide  the  real  estate  itself  in  such 
proportions  as  they  deemed  just  in 
reference  to  their  respective  inter- 
est in  the  proceeds,  and  it  appeared 
that  the  parties  had  lived  ten  years 
under  the  agreement;  that  the 
ownership  of  the  property  had  be- 
come so  changed  that  the  agree- 


ment could  not  be  disturbed  with- 
out grossly  violating  the  rights  of 
some  of  the  parties  to  it,  and  fraudu- 
lently depriving  them  of  their  prop- 
erty ;  that  the  executors  had  acqui- 
esced in  it,  and  induced  such  a  state 
of  things  as  made  it  a  fraud  in  them 
to  disturb  it,  the  court  said  that  the 
plea  that  such  an  agreement  was  il- 
legal because  one  of  the  parties  was 
a  feme  gooert,  came  with  an  ill 
grace  as  a  defence  on  the  part  of 
the  executors,  who  had  subsequent- 
ly sold  a  portion  of  the  property  re- 
leased under  the  agreement.  Scud- 
der  v.  Stout,  377 

At  the  time  of  the  execution  of  the 
agreement,  the  husband  of  one  of 
the  parties  had  been  absent  six 
years  and  upwards.  The  report 
was  that  he  was  dead:  it  was  so 
considered  by  the  family.  When 
the  executors  sold  the  property,  he 
had  been  absent  sixteen  years,  and 
the  party  was  married  again.  At 
that  time,  no  court  of  law  or  equity 
would  have  disturbed  the  agree- 
ment on  the  ground  alleged.  ib 

But  although  the  executors  acted  in 
bad  faith,  and  in  violation  of  the 
rights  of  those  interested  in  the  will 
of  the  testator,  it  does  not  follow, 
as  a  consequence  of  their  fraud,  that 
a  sale  made  by  them  is  void,  they 
being  authorized  by  the  will  to  sell 
the  land,  and  there  being  no  proof 
that  the  grantees  were  cognizant  of 
the  agreement.  ib 

Where  the  purchase  money  of  such 
sale  had  been  wrongfully  paid  over 
to  one  not  entitled  to  it,  the  court 
held  complainants  entitled  to  an 
account,  and  ordered  the  money 
brought  into  court.  to 


SPECIFIC  PERFORMANCE. 


A  person  may  make  an  agreement, 
which  will  be  legally  binding  upon 
him,  to  make  a  particular  disposi- 
tion of  his  property  by  last  will: 
and  a  court  of  equity  will  decree 
the  specific  performance  of  such  an 
agreement  upon  the  principles  which 
govern  the  court  in  the  exercise  of 
this  branch  of  its  jurisdiction. 
Johnson  v.  Hubbell,  333 

The  complainant  applied  to  the  de- 
fendant to  purchase  his  farm. 
After  some  negotiation,  it  was 
agreed  between  them,  that  if  the 
complainant  would  purchase  the 
Butz  farm,  the  defendant  would 
exchange  his  farm  for  the 


INDEX. 


619 


farm  "Uid  a  thousand  dollars.  At 
the  request  of  complainant,  defend- 
ant went  to  consult  his  wife  and 
family;  and.  on  returning,  said 
they  would  all  assent  to  the  arrange- 
ment. Complainant  then  purchased 
the  Butz  farm ;  and  being  obliged  to 
leave,  authorized  his  brother,  as 
agent  for  him,  to  enter  into  a  writ- 
ten agreement  with  defendant  for 
the  exchange  of  farms.  The  agree- 
ment was  executed,  by  which  it 
was  agreed  that  complainant  should 
convey,  free  and  clear  of  all  encum- 
brances, the  Butz  farm  to  the  de- 
fendant, and  that,  on  the  same 
day,  defendant  should  convey  his 
farm  to  complainant ;  and  complain- 
ant agreed  to  pay  the  difference  of 
one  thousand  dollars :  the  wife  ex- 
pressed herself  satisfied  with  the 
agreement.  At  the  time  appointed, 
complainant  tendered  his  deed, 
signed  by  himself  and  wife,  with 
full  covenants,  and  the  defendant 
tendered  a  deed  not  signed  by  his 
wife. 

Held,  that  as  the  refusal  of  the  wife  to 
unite  with  her  husband  in  the  con- 
veyance was  owing  entirely  to  the 
contrivance  and  fraud  of  the  defend- 
ant, who  in  this  way  was  endeavor- 
ing to  deprive  the  complainant  of 
the  benefit  of  a  specific  performance 
of  the  contract,  that  the  court 
should  order  the  agreement  perform- 
ed, and  the  conveyed  to  be  so  made 
between  the  parties,  that  the  com- 
plainant may  hold  in  the  land  which 
he  conveys  an  indemnity  against 
any  future  claim  to  be  set  up  by  de- 
fendant's wife.  Young  v,  Paul,  401 

It  was  argued  that  the  decree  would 
in  effect  force  the  wife  into  execu- 
ting the  deed,  which  should  be  her 
free  and  voluntary  act,  The  Chan- 
cellor said,  "  Upon  a  careful  exam- 
ination of  all  the  authorities,  if  the 
alternative  were  presented  to  me 
of  making  a  decree  for  specific 
performance  by  procuring  the  wife 
to  join  in  the  deed,  or  to  dismiss 
the  bill,  I  should  accept  the  latter." 

ib 

The  power  of  the  court  to  direct  in- 
demnity in  such  a  case  cannot  be 
denied;  it  is  the i  proper  and  natur- 
al mode  of  administering  equity  be- 
tween the  parties.  ib 

This  court  cannot  enforce  the  specific 
performance  in  a  deed,  the  nonper- 
mance  of  wliich  works  a  forfeiture 
of  the  estate.  The  grantor  has  fixed 
his  own  remedy,  and  can  forfeit  the 
estate  at  his  phsusure.  Wood/mff  v. 
Water  fower  Co,  180 


SURETY. 

If  a  person  becomes  surety  for  one  as 
administrator,  who  at  the  time  is  a 
debtor  to  the  estate  and  is  insolv- 
ent, and  is  never  able  to  discharge 
such  indebtedness,  such  surety  is 
not  bound  for  such  a  delinquency 
of  his  principal.  He  is  only  bound 
for  the  faithful  performance  of  his 
duties  as  administrator. 

If,  under  such  circumstances,  the  ad- 
ministrator should,  in  the  settle- 
ment of  his  accounts  with  the  court, 
charge  himself  with  the  debt,  and 
the  accounts  should  be  passed  in 
such  a  shape  as  to  bind  the  surety 
for  the  debt,  the  surety  would  be 
relieved,  upon  application  to  the 
proper  tribunal,  from  such  respon- 
sibility. Barker  v.  Irick,  209 

But  if  at  the  time  the  surety  assumes 
his  responsibility,  the  administrator 
owes  the  estate,  and  is  solvent  and 
able  to  pay,  the  amount  of  the  debt 
will  be  considered,  in  law  and  equi- 
ty, as  so  much  money  in  his  hands 
as  administrator  at  that  time,  and 
consequently  the  surety  will  be  re- 
sponsible for  it.  ib 


TITLE. 


Although  an  ejectment  suit,  does  not 
conclude  the  parties  from  further 
investigation,  this  court  will  look  at 
the  questions  which  were  really  in- 
volved in  that  suit ;  and  if  the  legal 
question  as  to  the  title,  which  is 
raised  by  the  bill,  was  decided  by 
the  court  of  law,  and  the  party  had 
by  the  judgment  and  process  of  the 
court  been  put  in  possession,  this 
court  cannot  require  better  proof  of 
legal  title.  Obert  v.  Ubert,  »« 

Although  a  man  can  have  no  easement 
on  his  own  land,  yet,  by  the  mere 
severance  of  his  title,  he  may  create 
such  easement,  and  the  test  as  to 
whether  such  easement  is  created,  is 
whether  it  is  essential  to  the  benefi- 
cia.  enjoyment  of  the  kind  convey- 
ed. It  is  created  ex  necessitate, 
though  not  by  the  words  of  the 
grant.  Brakely  v.  IShai-p,  'J0(» 

To  destroy  the  title  acquired  by  prior 
registry,  it  is  necessary  that  the  par- 
ty Kuould  liave  notice  of  a  prior  sub- 
sisting outstanding  title.  It  is  not 
enough  that  he  has  notice  tliat  a  pri- 
or deed  has  been  executed,  if  the  no- 
tice conveys,  also,  the  information 


620 


INDEX. 


that  the  title  is  not  in  existence. 
Holmes  v.  Stout,  419 

The  ground  upon  which  the  title  ac- 
quired by  a  prior  registry  of  a  deed 
is  lost,  in  case  of  notice  to  the  sec- 
ond grantee  of  the  existence  of  the 
prior  conveyance,  is  that  it  is  a 
fraud  in  the  second  grantee  to  take 
a  deed,  knowing  or  having  reason 
to  suspect  the  existence  of  a  prior 
title.  ib 

Unless  the  information  given  con- 
cerning the  existence  of  the  pre- 
vious conveyance  was  of  such  a 
character  as  to  taint  his  conduct  with 
fraud,  as  against  those  claiming 
under  the  prior  title,  the  notice  can- 
not affect  the  validity  of  his  title. 

ib 

Possession  is  sometimes  notice  of  claim 
of  title  sufficient  to  put  a  purchaser 
on  inquiry ;  but  it  must  be  an  actual 
possession  manifested  by  notorious 
acts  of  ownership,  such  as  would 
naturally  be  observed  by,  and 
known  to  the  public.  ib 

Cutting  wood  occasionally,  under  cir- 
cumstances which  might  be  regard- 
ed as  so  many  trespasses  quite  as 
probably  as  acts  of  ownership,  is 
not  evidence  of  such  possession,  ib 

The  grantee  of  a  bona  fide  purchaser 
•without  notice  is  not  to  be  charged 
with  the  encumbrance  or  fraud,  al- 
though directly  known  to  him  be- 
fore he  acquired  his  title;  otherwise 
the  loss  must  be  visited  upon  the 
bona  fide  purchaser,  as  he  would 
thereby  be  obliged  to  keep  the 
property,  or  to  sell  it  at  such  a  price 
as  would  enable  his  purchaser  to 
discharge  the  encumbrance  or  purge . 
the  fraud.  ib 


TRUST  AND  TRUSTEE. 


This  court  has  no  right  to  institute  an 
inquiry  into  the  doctrines  or  mode 
of  worship  of  any  religious  society, 
except  such  inquiry  shall  become 
absolutely  necessary  for  the  protec- 
tion of  trust  property.  Lutheran 
Church  v.  Maschop,  57 

Where  a  bill  claims  the  execution  of 
a  resulting  trust,  the  facts  from 
which  it  alleges  the  trust  results 
must  be  proved.  A  complainant 
cannot  make  one  case  by  his  bill, 
and  having  failed  to  prove  it,  aban- 
don it,  and  recover  upon  a  different 
one  established  by  the  evidence. 
Andrews  v.  Farntiam,  91 

A  testator  at  his  death  left  a  widow, 
since  deceased,  and  three  minor 
children.  His  widow  took  a  Kfe  es- 


tate only  in  the  land  and  premises 
under  his  will.  Some  years  after 
the  death  of  testator,  his  widow 
conveyed  the  premises  in  question 
to  a  trustee,  in  trust  for  the  benefit 
of  her  minor  children,  with  power 
to  dispose  of  and  convey  the  same 
to  the  best  advantage.  The  trustee 
sold  the  premises,  and  the  posses- 
sion of  the  premises  had  since  fol- 
lowed his  conveyance.  The  court 
refused  to  enjoin  the  minor  chil- 
dren from  prosecuting  an  action  of 
ejectment,  or  to  order  them  to  exe- 
cute conveyances  or  releases,  as 
there  was  no  evidence  that  they, 
after  arriving  at  age,  had  assented 
to  the  sale,  or  received  any  consid- 
eration for  it. 

The  trustee  who  had  given  a  warranty 
deed  for  the  land,  and  remained  lia- 
ble upon  it,  was  excluded  as  a  •wit- 
ness on  account  of  interest.  Farley 
v.  Woodburn,  96 

Where  a  trustee  pays  a  debt  which  is 
a  prior  lien  on  the  trust  fund,  and 
which  it  is  necessary  to  pay  in  or- 
der to  protect  the  fund,  for  the  ben- 
efit of  the  trust,  the  trustee  is  enti- 
tled to  be  reimbursed  out  of  the 
trust  fund,  and  this  constitutes  a 
first  lien  on  the  fund. 

A  mortgage  was  executed  to  William 
Whitneld.  This  mortgage  is  abso- 
lute upon  the  face  of  it.  But  it  was 
executed  in  trust,  and  the  trust  is 
declared  in  an  instrument  of  writ- 
ing between  Abraham  J.  Jeroloman 
and  the  mortgagee.  By  the  plain 
construction  of  the  instrument,  it 
secured,  first,  to  William  Whitfield, 
John  Kennedy,  and  Abraham  V. 
Speer,  such  sum  or  sums  of  money 
as  were  due  or  owing  to  them,  or  to 
either  of  them,  from  Abraham  J. 
Jeroloman  at  the  time  of  its  execu- 
tion, as  well  as  all  such  sums  of 
money  as  they  should  advance  on 
account  of  any  judgments,  or  other 
claim  or  debt,  then  existing  against 
Jeroloman,  and  the  interest  accru- 
ing thereon ;  and  second,  it  secures 
to  John  S.  King,  William  H.  Brant, 
Peter  Cooman,  and  Minard  Coo- 
man,  the  several  amounts  of  money 
then  due  and  owing  to  them,  or 
either  of  them,  and  to  Joseph  Budd 
the  sum  of  one  hundred  dollars. 
Held,  the  debt  due  Speer  at  tho 
time  of  the  execution  of  the  writ- 
ing has  a  preference  over  any  ad- 
vances subsequently  made  by  any 
of  the  parties  to  the  instrument. 
Speer  v.  Whitfield,  107 

The  rule  of  the  common  law  is  un- 
doubtedly well  established,  that  a 
trustee,  executor,  or  administrator 


INDEX. 


C21 


shall  have  no  allowance  for  his  care 
or  trouble.  The  Court  of  Chancery, 
independent  of  any  statute  law  or 
local  custom,  has,  with  few  excep- 
tions, adopted  this  rule.  Wai°bass 
v.  Annul  ro  it  <j,  283 

In  New  Jersey  the  rule  in  different. 
Executors,  administrators,  guardi- 
ans, and  trustees  are  allowed  com- 
pensation by  statute,  and  the  prin- 
cipal upon  which  allowance  is  to  be 
made  is  regulated  by  statute.  The 
statute  declares  it  shall  be  made 
with  reference  to  their  actual  pains, 
trouble,  and  risk  in  settling  the 
estate,  rather  than  in  respect  to  the 
quantum,  of  the  estate.  ib 

The  commissions  are  a  compensation 
for  the  faithful  discharge  of  duty. 
"Where  a  testator  gave  discretion  to 
trustees  to  sell  land,  and  directed 
that,  if  sold,  the  proceeds  should  be 
invested  in  good  landed  security  ; 
held  that  if  the  funds  arising  from 
the  sale  had  been  in  the  hands  of 
the  trustees,  and  had  remained  so 
for  a  long  period  without  any  secur- 
ity, that  they  had  violated  their 
duty  as  trustees,  and  were  not  en- 
titled to  commissions.  t'6 

Trustees  who  did  not  invest  according 
to  the  terms  of  the  trust  com- 
pelled to  pay  the  cost  of  the  suit, 
the  complainant  having  been  driven 
into  litigation  to  establish  the 
amount  of  the  trust  fund.  ib 

A  father  placed  trust  funds  in  the 
hands  of  his  son  in  law,  for  the 
benefit  of  his  daughter.  The  son  in 
law  purchased  real  estate  with  the 
trust  funds,  and  took  the  deed  in 
his  own  name. 

Held,  that  the  court  would  protect 
the  real  estate  against  a  judgment 
and  execution  creditor  of  the  hus- 
band. Lathrop  v.  Gilbert,  345 

Whore  property  is  so  held  by  the  hus- 
band, and  he  expends  his  own  mo- 
ney, to  a  large  amount,  in  making 
Improvements  upon  the  trust  pro- 
perty, for  the  purpose  of  protecting 
it  from  his  creditors,  tho  court 
might  properly  refuse  its  aid  in  pro- 
tecting the  trust  property,  and  cer- 
tainly would  not  interfere,  oxcopt 
BO  far  as  to  protect  the  fund  in  the 
property  belonging  to  the  wife.  16 

On  a  bill  filed  on  behalf  of  an  infant 
complainant  to  compel  executors 
and  trustees  under  a  will  to  i  ocount 
for  the  estate  of  the  testator  which 
has  come  to  their  hands,  and  for  the 
execution  of  their  trusts,  complain- 
ants ore  entitled  to  an  account  as  a 
a  matter  of  course.  Holconibt  v.  \ 
Cornell,  302| 

The  tttftator  directs  Uiat  all  the  resi-  | 


due  of  his  personal  estate,  after 
payment  of  debts  and  legacies,  shall 
be  invested  in  productive  real 
estate.  This  does  not  authorize  the 
executors  to  purchase  vacant  lots, 
erect  buildings  upon  them.  Such 
property  cannot  be  considered  pio- 
Uuctive  real  estate.  ift 

The  testator  authorizes  his  executors 
to  make  suitable  and  convenient 
improvements  and  necessary  re- 
pairs on  the  real  estate  in  their  pos- 
session. This,  in  connection  with 
the  language  used  as  to  the  pur- 
chase of  productive  real  estate,  is 
inconsistent  with  the  idea  that  the 
testator  meant  his  executors  to 
purchase  vacant  lots,  and  erect 
buildings  upon  them.  ib 

\  The  testator  directs  the  disposition 
of  a  surplus,  which  he  contemplates 
will  remain  after  the  improvements 
made:  this  hardly  comports  with 
the  idea  that  they  should  use  the 
funds  in  their  hands  indiscrimin- 
ately in  the  erection  of  buildings. 

t'6 

J.  K,  of  the  firm  of  3VIcM.,  R.  &  Co., 
when  the  firm  was  in  failing  cir- 
cumstances, convey ed  his  real  estate 
to  F.  D.,  in  trust  for  his  wife.  The 
deed  was  set  aside  in  favor  of  the 
complainants,  who  were  judgment 
and  execution  creditors  of  the  firm, 
on  the  ground,  that  from  the  an- 
swer of  the  defendants,  and  thw 
pixwfs  in  the  case,  it  appeared  that 
no  consideration  was  paid,  and  that 
it  was  executed  for  the  purpose  of 
protecting  the  property  from  the 
creditors  of  the  firm.  Wilson  v. 
King,  3K1 

If  a  woman,  on  the  eve  of  her  marri- 
age, rightfully  placed  a  part  of  hor 
estate  in  her  sister's  hands,  in  trust 
for  the  children  of  her  intended 
marriage,  and  there  were  no  chil- 
dren of  the  marriage,  the  fluid  be- 
longs to  tlio  husband  on  the  death 
of  the  wife. 

Where  there  were  children,  who,  an 
cextui  '/'"'  '/•"••>•'••',  disclaimed  title, 
and  renounced  all  right  to  tl»e  fund, 
ami  declined  to  accept  it,  the  fund 
belongs  to  the  husband,  as  adminis- 
trator. William*  v.  L'ai-U,  54H 


VESTED  IUGHTR 


The  legislature  may  (jive  additional 
powers,  from  tin  if  to  timo,  to  cor- 
porations; thoacta  of  the  corjtora- 
tion,  in  pursuance  of  tuch  authority, 


622 


INDEX. 


are  binding,  unless  they  conflict  with 
vested  rights  or  impair*  the  obliga- 
tion of  contracts.  Gifford  v.  Ntno 
Jersey  Railroad  Co.,  171 

Py  the  supp!em3nt  to  the  charter  of 
the  Newark  and  Bloomfield  Rail- 
road Company,  passed  March  &5th,  j 
I8.V.J,  §  3,  it  is  enacted,  that  nothing  ' 
-in  the  supplement  contained  shall 
be  construed  t:>  impair,  in  any  man- 
ner,' any  reversionary  interest  or 
vested  right  which  the  stats,  or  any 
incorporated  company  or  companies, 
or  any  individual,  may  possess  un- 
der the  charter  of  the  Bridge  Com- 
pany. This  provision  is  also,  in 
effect,  contained  in  the  constitu- 
tion, ib 

A  stockholder  of  the  Bridge  Company 
has  a  vested  right  in  the  value  of 
kis  stock  and  interest  in  the  fran- 
chise of  exclusive  tolls,  and,  as  an- 
cillary to  this,  an  interest  in  the  ex- 
clusive right  of  building  bridges 
over  ths  rivers  Passaic  and  Hack- 
ensack.  ib 

Any  act  of  the  corporation  impairing 
these  rights  of  a  stockholder  with- 
out his  consent,  either  express  or 
implied,  would  not  be  binding  on 
bim  under  the  above  provisions,  ex- 
cept in  a  proceeding  authorizing  the 
taking  of  private  property  for  pub- 
lic use3  upon  making  compensation. 
But  long  acquiescence  will  be  con- 
sidered as  equivalent  to  a  consent, 
and  whatever  ground  of  equity  an 
individual  stockholder  may  have 
had,  a  counter  equity  may  arise 
from  lapse  of  tim-3.  ib 

The  act  of  tag  legislature,  passed  the 
17th  March.  l£T>i,  declaring  Little 
Timber  creok  to  be  a  public  high- 
way, which  authorizes  and  requires 
the  township  committee  to  remove 
the  dam,  is  in  violatiqp  of  the  con- 
stitution of  the  United  States,  which 
declares  that  no  state  shall  pass  any 
bill  of  attain '^^  ex  post  facto  law, 
or  law  irnpa'tjjgg''  the  obligation  of 
contracts.  l»**us  a  virtual  repeal 
of  the  act  of  17(50,  under  the  pro- 
visions of  which  rights  had  became 
.vested,  and  valuable  property  had 
been  acquired.  It  is  in  violation  of 
good  faith.  It  impairs  the  obliga- 
tion of  a  contract.  Glover  v.  Pow- 
ell, 211 

The  act,  of  1S54  was  also  repugnant  to 
the  constitution  of  the  state  of  New 
Jersey,  as  taking  private  property 
for  public  use  without  just  compen- 
sation. i'i 

A  partial  destruction  or  diminution 
of  value  is  the  taking  of  private 
property.  '  ib 


WATERCOURSES. 


A.  is  the  owner  of  two  farms,  through 
which  runs  a  natural  stream.  He 
sells  to  B.  the  farm  upon  which  the 
watercourse  has  its  origin;  A.  is  en- 
titled to  have  the  water  flow  upon 
the  farm  which  he  reserves  the 
same  as  he  enjoyed  it  when  he 
severed  his  title,  because  the  water- 
course did  not  begin  by  the  consent 
or  the  act  of  the  parties,  but  ex  jure 
natural.  But  water  conveyed  by 
pipes  is  a  thing  which  is  created 
and  controlled  by  the  parties,  and 

•  is,  in  its  very  nature,  different  from 
a  natural  watercourse. 

C.  S.  died,  leaving  a  large  farm, 
through  which  was  an  artificial 
watercourse.  Proceedings  were  had 
in  the  Orphans  Court  for  partition 
among  the  heirs,  and  a  portion  of 
the  farm  through  which  the  arti- 
ficial watercourse  run  was  set  off 
to  part  of  the  heirs,  and  another 
portion  was  sold  under  an  order  of 
the  court.  Held,  that  the  purchas- 
ers were  entitled  to  the  enjoyment 
of  the  watercourse  as  it  existed  at 
the  time  of  sale.  The  act  of  the 
commissioners  was  no  such  sever- 
ance of  the  unity  of  title  as  would 
govern  the  rights  of  the  grantor  to 
the  enjoyment  of  the  watercourse. 
Brakely  v.  Sharp,  20o 


WILL. 


In  this  case,  the  words  were,  "  I  give, 
devise,  and  bequeath  to  my  beloved 
wife,  Elizabeth  M.  Clark,  six  hun- 
dred dollars,  at  the  end  of  six 
months  after  my  decease,  and  my 
gold  watch,  which  she  carries,  and 
the  silver  teaspoons,  the  two  sets  of 
window  blinds  in  the  back  room, 
and  the  hall  lamp,  which  she  brought 
me  at  or  after  our  marriage;  and 
her  acceptance  of  the  above  gift 
shall  for  ever  exclude  her  from  any 
further  demands  on  my  estate."  It 
was  insisted  that  the  acceptance  of 
the  gift  excluded  the  widow  from 
any  further  demand,  only  against 
the  personal  estate;  that  the  legacy 
was  to  b3  paid  her  by  the  executor, 
and  that  against  that  estate  out  of 
which  the  legacy  was  to  be  paid  she 
was  excluded  from  any  further  de- 
mands. It  was  held,  that  if  the  other 
parts  of  the  will  gave  no  further  in- 
dication of  the  testator's  intention, 
this  construction  might  prevail.  Bu  fc 
as  the  testator  had  put  both  real  and 


INDEX. 


623 


personal  estate  in  the  hands  of  the 
executor  for  disposition,  and  dispos- 
ed of  his  whole  estate,  real  and  per- 
sonal, through  the  executor,  the  per- 
sonal to  pay  the  widow  the  legacy, 
and  the  disposition  was  inconsistent 
with  the  widow's  enjovment  of  her 
legal  right,  it  was  the  clear  and 
manifest  implication,  from  the 
whole  will,  that  the  testator  did  in- 
tend the  gift  to  be  in  lieu  of  dower, 
and  did  not  by  the  use  of  the  word 
''  estate"  mean  personal  estate  only. 
Norria  v.  Clark,  51 

Dower  is  a  legal  right,  wliich  is  favor- 
ed both  in  law  and  equity.  To  debar 
the  widow  of  this  right,  and  put  her 
to  an  election  between  her  dower 
and  a  bequest  in  the  will,  there 
must  be  some  express  declarations 
of  the  testator  excluding  her  from 
her  right,  or  it  mast  be  clear,  by  im- 
plication, that  such  was  his  inten- 
tion, ib 

The  personal  estate  is  the  only  fund 
for  the  payment  of  legacies,  unless 
a  contrary  intention  appears  in  the 
will  Sims  v.  Sims,  158 

Where  a  legacy  is  made  an  exprei  s 
charge  upon  the  land,  if  the  person- 
al estate  in  the  hands  of  the  execu- 
tor is  sufficient  to  pay  the  legacy, 
and  the  executor  squanders  the  es- 
tate, the  legatee  cannot  resort  to  the 
land.  The  land  is  debtor  for  the 
legacy  only,  and  not  for  the  miscon- 
duct of  the  executor.  ib 

Where  the  executor  has  in  his  hands 
fluids  sufficient  to  pay  all  the  lega- 
cies, and  after  pay  ing  some  of  them, 
squanders  or  misapplies  the  residue 
of  the  fund,  the  legatees  unpaid 
cannot  report  to  the  others  for  con- 
tribution; the  legatees  who  have 
received  payment  are  entitled  to 
the  benefit  of  the ir  diligence.  When 
there  is  an  original  deficiency  of  as- 
sets, the  rule  is  different:  and  the 
rule  imy  have  a  different  applica- 
tion wh^n  there  is  a  participation  in 
misapplying  the  asset.*  between  the 
executor  atid  such  legatees  as  are 
paid  their  legacies.  ib 

Hop?  Cowperthwait,  by  her  will,  di- 
rected her  trustees  to  pay  a  certain 
fund,  as  follows:  "  unto  such  of  tl  e 
brothers  and  sisters  of  tnv  daugnt'  r 
Hannah  and  their  children,  and  in 
Mi'-li  proportions  as  mv  said  daugh- 
ter H.  shall  by  her  last  will  and 
te-stament,  or  writing  in  natuie 
thereof,  signed  by  her  hand,  and  at- 
tested by  two  credible  witnesses,  di- 
rect and  appoint." 

This  language  gives  to  th<>  donee  a 
discretion  as  to  a  selection  between 


the  objects  named.    Lippincott  v. 
Ridyway,  iw 

!  After  the  language  quoted  alwvre,  fol- 
lows "my  will  being  that  uiy  said 
daughter  shall  in  such  case  have 
power  to  dispose  of  the  same  among 
her  brothers  and  sisters,  and  then- 
children,  in  such  proportions  as  she 
may  think  fit,  but;  to  no  other  per- 
son or  persons  whatsoever. "  t'< 

This  limited  the  power  of  appoint- 
ment, and  entitled  each  of  the 
brothers  and  sisters  of  Hannah  Lip- 
pincott, to  a  portion  of  the  fund.  »'•'» 

E.  E.  went  to  the  office  of  S.,  a  scriv.e- 
ner,  who  drew  her  will,  and  alter 
it  was  executed,  S. ,  at  the  request 
of  E.  E.,  put  it  in  his  private  secre- 
tary with  his  private  papers  lor 
safe  keeping.  To  the  knowledge  of 
S..  the  will  was  never  sent  for,  or 
taken  away  by  E.  E.,  and  during 
frequent  conversations  between  E. 
E.  and  S.,  the  will  was  ^poken  of. 
E.  E.  dies,  and  S.,  upon  searching 
for  the  will,  finds  it  gone  from  the 
place  where  he  deposited  it,  and  up- 
on search  cannot  find  it.  He  states, 
under  oath,  that  he  believes  the  will 
to  have  been  clandestinely  taken 
from  his  secretary;  held,  that  the 
presumption  is  that  this  was  the 
last  will  of  E.  E. ,  and  unless  that 
presumption  is  overcome  in  some 
legal  way,  will  be  established.  Hil- 
drethv.  Schillinger,  1S!(> 

The  evidence  in  this  case  stated,  and 
the  reasons  given  for  the  conclu- 
sion, that  the  evidence  does  not 
overcome  the  presumption  in  favor 
of  the  alleged  paper  being  the  last 
will  of  E.  E.  it> 

There  is  no  reason  for  the  court  sub- 
mitting the  question  of  fact,  wheth- 
er a  will  has  been  cancelled,  or  sur- 
reptitiously destroyed,  to  a  jury, 
where  the  evidence  is  such  as  to  cre- 
ate no  embarrassing  doubt  in  the 
mind  of  the  court.  i/» 

The  testator  first  charged  all  his  es- 
tate, both  real  and  personal,  with 
the  payment  of  his  debts  ;  he  then 
declared  that  the  revenues  should 
be  used  for  tiiat  purpos-c,  topdhcr 
with  such  other  appropriations  ns 
he  mokes.  Held,  that  the  word  ap- 
propriations evinced  the  intention 
of  the  testator  to  designate  and  s-et 
njwirt  the  portion  referred  to  frcm 
his  other  property  fora  specific  eb- 
jeet.  riz.  to  constitute  n  fm:<J  in  (!•« 
hands  of  his  executors  to  pny  his 
debts.  Wkitchead  v.  Gil-ions,  £50 

It  is  n  settled  rule,  that  the  persrnnl 
estate  is  the  primary  fund  to  |»y  (ho 
debts,  and  that  it  is  r.ot  relieved  id  cm 


624 


INDEX. 


the  burthen  by  the  debts,  in  express 
terms,  being  charged  upon  the  re- 
alty ;  and  tnat  wherever  it  is  aided 
either  by  a  legal  or  an  equitable 
fund,  it  must  be  itself  in  the  first 
place  applied. 

This  rule  is  within  the  control  of  the 
testator,  and  is  not  applicable  where 
his  intention  to  the  contrary  is 
either  expressed  or  clearly  implied. 
That  intention  must  not  be  simply  to 
charge  the  realty,  but  to  exonerate 
the  personalty.  ib 

Personal  property  not  specifically  be- 
queathed, must  be  applied  before 
specific  legacies.  ib 

A  residuary  clause  in  a  will  was  as 
follows:  "All  the  rest  and  residue 
of  my  estate,  real  and  pei-sonal  and 
mixecl,  wherever  it  may  be  situ- 
ated or  found,  that  I  may  die  pos- 
sessed of,  not  herein  before  enumer- 
ated, provided  for.  given,  &c.,  I  do 
hereby  give,  &c.,  to  my  sou  Wil- 
liam." It  was  argued  that  testator 
did  not  die  possessed  of  the  rents  of 
his  real  estate  and  the  interest  on 
obligations,  &c.,  which  accrued 
after  his  decease.  But  it  was  held 
that  it  was  the  intention  of  the  tes- 
tator that  the  residuary  clause 
should  embrace  everything  he  had 
a  right  to  dispose  of,  not  specifically 
devised  or  bequeathed.  ib 

"I  give  and  bequeath  unto  my  be- 
loved wife,  Susan  Ward,  all  mv 
propeVty,  both  real  and  personal, 
to  be  disposed  of  in  such  manner 
as  she  may  think  proper  for  the 
'benefit  of  the  family;  it  is  my 
wish  that  my  youngest  daughters, 
Mary  and  Caroline,  shall  have  an 
education  equal  to  my  daughter 
Phebe,  and  my  two  sons,  Syden- 
ham  and  John,  to  be  educated  and 
fully  prepared  to  enter  college,  or 
the  study  of  a  prof  ession ;  but  pro- 
vided either  of  them  should  not 
choose  to  have  such  an  education, 
the  one  who  does  not,  to  be  made 
equal  in  property  to  the  expense 
of  educating  the  other,  in  which 
case  the  mother  is  to  be  judge,  or 
in  case  of  her  decease,  my  execu- 
tors, whom  I  shall  appoint.  After 
the  children  arrive  at  age,  I  leave 
it  discretionary  with  Susan,  my 
loving  wife,  what  donation  to 
make  them  out  of  the  property, 
and  in  case  of  her  decease  or  mar- 
riage, to  be  loft  with  the  execu- 
tors, whom  T  shall  hereafter  name, 
but  in  every  respect  I  wish  them 
made  as  near  equal  as  can  be. " 


Testator  appointed  his  wife,  his 
brother  and  brother  in  law  execu- 
tors. The  wife  alone  proved  the 
will,  the  others  renounced. 

Held,  that  Susan  Ward  took  the  prop- 
erty in  trust  for  herself  and  chil- 
dren while  she  lived  and  remained 
his  widow ;  that  the  property  was 
to  be  used  for  their  mutual  benefit, 
"  in  such  manner  as  she  might  think 
proper,"  except  in  the  particular 
specified  by  the  testator,  and  so  that 
in  every  respect  the  children  should 
have  an  equal  share  of  his  property. 

That  Susan  Ward  had  no  right  to  dis 
pose  of  the  property  in  question  by 
will;  that  it  belonged  to  the  children 

•  by  the  will  of  their  father,  and  is  to 
be  divided  among  them  equally. 
Ward  v.  Peloubet,  304 

A  testator  gives  and  bequeaths  all  his 
property  in  trust  for  the  payment 
of  certain  annuities  and  legacies, 
and  then  says,  ''And  to  my  two 
aforesaid  daughters  I  give  and  be- 
queath the  residue  of  all  my  estates, 
real  and  personaL 

Held,  that  the  legal  title  to  the  resi- 
due passed  by  the  will  to  the  daugh- 
ters. That  the  annuities  and  lega- 
cies were  a  charge  upon  the  estate, 
but  when  they  were  satisfied  the  es- 
tate was  discharged  of  all  trusts. 
Hunt  v.  Hunt,  315 

A  pei-son  may  make  an  agreement, 
which  will  be  legally  binding  upon 
him,  to  make  a  particular  disposi- 
tion of  his  property  by  last  will.  A 
court  of  equity  will  decree  a  spe- 
cific performance  of  such  an  agree- 
ment. Johnson  v.  Hubbell,  332 

A  testator  made  certain  specific  de- 
vises and  bequests  to  several  of  his 
children.  He  then  gave  a  life  es- 
tate to  his  wife  in  his  real  and  per- 
sonal property  not  specifically  dis- 
posed of.  He  then  declared  that  his 
real  and  personal  estate,  after  the 
death  of  his  wife,  unless  his  wife 
chose  to  give  up  the  estate  before 
her  decease,  should  be  sold,  and  di- 
vided among  certain  of  his  children ; 
and  then  declares,  that  if  any  of  his 
children  should  die  without*  lawful 
issue  of  the  body  begotten,  then  his, 
her,  or  their  share,  or  legacy, 
should  be  equally  divided  among 
the  su-rvivors,  share  and  share  alike.. 
Held,  that  he  used  the  term  survi- 
vors with  reference  to  the  perio  1 
when  the  estate  should  be  divided, 
after  the  happening  of  the  event 
mentioned  in  his  will,  to  wit,  the 
dsath  of  his  wife.  Williamson  v 
Chamberlain,  373 


EKDEX. 


625 


Where  the  testator  directs  a  sale  of  i 
land  to  be  made,  and  the  proceeds  II 
to  be  divided  among  his  heirs  at  ' 
law,  they  may  elect  to  take    the 
lands,   and  a  court  of  equity  will 
secure  to  them  the  benefit  of  their 
election.    Scudder  v.  Stout,        377 


A  residuary  disposition  will  carry  all 
the  contingent  or  reversionary  in- 
terest which  a  specific  devise  shall 
leave  undisposed  of.  Generally 
speaking,  where  a  specific  devise 
foils  on  account  of  its  being  void 
ah  initio  the  property  so  devised 
will  go  to  the  heir  at  law.  But  if 
tha  specific  devise  dispose  only  of  a 
partial  or  contingent  interest  iu  the 
lands,  leaving  an  ulterior  or  alter- 
nate interest  undisposed  of,  that 
would,  in  the  absence  of  disposition, 
descend  to  the  heir.  Such  indis- 
posed of  interest  will  pass  by  a 
general  residuary  clause.  Execu- 
tors of  Shreve  v.  Shreve,  385 

Every  residuary  devise  of  real  estate, 
however  general  the  terms  of  it,  is 
in  its  nature  specific.  As  this  prin- 
cipal follows  from  the  fact,  that  the 
devisor  can  only  devise  the  lands  to 
which  he  is  actually  entitled  at  the 
time  of  making  his  will,  a  question 
might  arise,  how  far,  in  New  Jersey, 
it  should  be  considered  applicable 
to  after  acquired  lands,  since,  by 
the  statute  of  1S54,  the  distinction 
between  real  and  personal  estate  in 
this  particular  is  abolished.  ib 

Where  no  directions  are  given  by-  the 
testator  for  the  payment  of  his 
debts,  specific  legacies  must  be  aj>- 
appropriated  before  real  estate 
devised;  but  where  the  testator 
mikes  his  debts  a  charge  upon  his 
i^eal  as  well  as  personal  estate, 
or  upon  his  estate  generally,  the  de- 
visees  and  legatees  must  boar  their 
respective  share  of  the  burthen  pro 
rota ;  and  this  is  the  case  where  the 
testator  commences  his  will  with  a 
general  direction  that  his  debts 
shall  be  paid.  i/> 


Tin  testator  left  four  daughters,  two 
grandsons,  children  of  a  deceased 
son,  his  deceased  son's  widow,  and 
his  own  wife,  the  devisees  of  all  his 
property.  He  first  directs  his  ex- 
ecutors to  pay  off  and  discharge  all 
his  debts.  He  gives  to  his  wife, 
during  her  natural  life,  the  sole  and 
exclusive  use  of  all  his  plate,  books, 
&c.  To  his  daughter  in  law,  he  de- 
vises the  sole  and  exclusive  use  and 
occupancy  ami  all  tho  rents  and 
profits  of  tho  Biddle  farm,  to  !*• 

VOL.  ii.  3  o 


held  and  enjoyed  by  her  from  the 
time  of  his  decease  until  the  25th 
day  of  March,  immediately  preced- 
ing the  time  when  his  grandson 
should  arrive  at  the  age  of  twenty- 
one  years,  with  the  proviso,  and 
upon  the  condition,  that  his  said 
daughter  in  law  should,  within 
three  months  after  his  decease,  ex- 
ecute and  deliver  to  his  executors  a 
full  and  absolute  release  and  dis- 
charge of  all  claims  and  demands 
she  might  have  against  his  estate. 
To  his  two  grandsons,  from  the  said 
25th  day  of  March,  he  gives  the 
Biddle  farm,  as  joint  tenants,  with 
remainder  to  their  issue  in  fee,  and 
in  default  of  issue  to  the  right  heirs 
of  the  testator,  fie  also  gives  to  his 
grandsons  one  third  part  of  hjs  pine 
lands  and  cedar  swamp.  To  his 
four  daughters,  the  testator  gives 
his  homestead  farm  and  two-thirds 
of  his  pine  lands  and  cedar  swamps, 
with  an  estate  of  the  same  char- 
acter as  that  devised  to  his  grand- 
sons. He  then  devises  and  be- 
queaths to  his  four  daughters,  to 
their  heirs  and  assigns  for  ever,  all 
the  rest,  residue,  and  remainder  of 
his  estate,  to  be  equally  divided 
among  them,  share  and  share  alike, 
subject  only  to  the  payment  of  aH 
just  claims  against  him  on  note,  or 
book  of  account,  funeral  charges, 
testamentary  and  incidental  ex- 
penses, and  commissions.  The  tes- 
tator left  one  specialty  debt,  which 
was  a  bond  debt,  the  principal  of 
which  was  $tHHX),  and  which  was 
due  to  his  daughter  in  law.  She  re- 
fused to  comply  with  the  proviso 
under  which  the  devise  was  made 
to  her,  under  the  will,  of  the  Biddle 
farm.  All  the  personal  estate 
which  passed  under  the  residuary 
clause  had  been  appropriated  to  pay 
the  simple  contract  debts,  and  there 
was  a  deficiency.  There  was  no 
other  personal  estate,  except  tho 
specific  legacies  to  the  widow.  Also 
to  the  simple  contract  debts,  it  was 
admitted  that  the  sj>ecinc  devises 
mast  contribute  pro  rata. 


Held,  that  as  to  the  simple  contract 
debts,  the  interest  of  tho  residuary 
devisees  iu  tho  Biddlo  farm,  must 
contribute  pro  rata  with  the  other 
specific  devises  to  pay  the  simple 
contract  debts,  but  as  to  tho  speci- 
alty debt,  it  is  not  liable  to  contri- 
bution. Decree  that  tho  residuary 


personal  estate  be  first  appropriated 
to  pay  tho  simple  contract  debts  of 
tho  testator  and  oxi>onse  of  settling 
the  estate;  that  tho  specific  legacies 
an-1  dfVistM  contribute  pro  ratn  to 
to  make  up  any  deficiency;  ami  la 


020  INDEX. 

to  the  specialty  debts,  the  specnic  j  vise  of  the  Bkldle  farm  being  liable 

deviseo,  except  that  of  the  i-.icuUe  \  only  in  the  event  of  a  deficiency  of 

farm,  which  fell  into  the  residue,  j  all  other  property  to  pay  the  speciaJ- 

l<rst  contribute  pro  rat  a  to  pay  the  :  ty  debts.  ti 

specialty  debs,    the    re^iduury  do- 


A     001  028  842     1 


